The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-12-25

superintendent over all public i'm
provements, he must follow the stat
utory requirements of giving notice
etc.
Civil Code, Sections 162 q seq.
1t is claimed that the bill does not
aver irreparable injury from the act
complained of. But "i1Teparable
injury" does not mean that there
must be a physical impossibility OF
repairing the injury. All that is
meant is, that the injury would be a
grievous one, or at least, a material
one.
Kerr on Injunctions, p. I'll.
The Court viii restrain public func-
tionaries from causing permanent
injury to property as distinguished
from mere damage.
Kerr on Injunctions, p. 357.
1t is claimed for the defendant
that the plaintiffs injury is one for
which the law gives no remedy.
The grading of a street is an alter
alton within the meaning of the law.
Civil Code, Sections 49, ct seq.
lSatoysr rs. KeeHe, AZ n. II. 173.
NUtter rs. Aeerington, 1 L. r.. Q. 3.
Div. 375 per Cotton L. J.
WoddeU rs. Maya, ete., s Barbour 81.
The Court will always, if reason
ably practicable. so construe statutes
as to avoid undue exercise of execu-
tive power, to the actual injury of
individuals, and especially will seek
to avoid declaring a law unconstitu-
tional. But if the grading of the
street is not authorized, except under
the Act of 1856, then it is commended
that the Act itself is unconstitutional
and void, as authorizing the taking
of the plaintiffs property for public
use, without due process of law or
just compensation.
The question then is, whether the
plaintiffs property is taken" in
the meaning of the Constitution.
The true meaning of the word
taken is well shown in
P,mpelly rs. Green Bay Co., Is Wall.
166.
See also Harding IS. STANFORD Water
Co., Al Conn. 81.
Trenton Watey-Po,ce. Co. as, Raj, sc
n. J. 1876.
Hooker es, Es,oaaeen Go, IA Conn.
LAG.
DeIarare and RayItqn Gnay CO. Us.
Lee, 2 Zab. 243.
Eaton cs. B. c. and II. r. r., 81 n.
H. 5O4,
In Ohio the liability of municipal
corporations is held to include all
consequential injuries resulting from
the exercise of their lawful powers.
Akron as. Chamberlain Co., 81 Ohio
st. 800.
The Constitution not only prohib-
its the taking of private property,
but declares Art. 8 that no person
shall be deprived Of property with
out due process of law" Deprive
means to hinder from possessing as
well as to dispossess. Worcester.
The bill AYERS that the defendant
makes the grade higher than the
public use reasonably requires and
that he is unreasonably diminishing
the value of the plaintiffs property
This is a reason for granting the re-
lief prayed for.
Green's Brtces Ultra Yires PIP. 36S,
800.
G. W. Ashford for defendant. The
right of the Court to take jurisdic-
ton of the case is denied on the
ground that it is a suit against the
Hawaiian Government, in which no
statutory authority to sue has been
obtained.
It was not claimed in argument,
nor does the complainant contend
that his suit can be maintained if it
be in fact and in law a suit against
the Hawaiian Government.
The case In re Ayers" 123 U. S.
443, 467 is very closely in point in
the case at bar, and fully supports
the contention, that this is a suit |
against the Hawaiian Government.
The Court can go behind the rec
ord to see who is the actual party.
Cunningham as. Macon and Brunswick |
r. r. Co., 1919 U. S. 446.
Hagood rs. Southern, III I. S. 81.
The Court will not pass upon the
question of the unconstitutionality |
or invalidity of a statute unless there |
is an express allegation of such in
in the bill.
If it be contended, that the allega-
ton in the bill, introduced as amend
ment, to cover the point that the
grade as established on Halekauila
street is higher than necessary"
is sufficient to put the Government
on its defence and to warrant a ju-
dicial inquiry, then the proposition
is combatted on the following
grounds: A reference to Chapter
LXIV, of the laws of 1856, under
which it is alleged that we are pro
shows that certain discre-
tionary powers have been reposed in
the Commissioners therein provided
for, as to the grade levels Of the en-
tire system of streets of the city.
An assertion that those Commission
ers have fixed any grade higher or
lower than necessary" at once in
wolves an inquiry into, and solicits a
review of the soundness or otherwise
Of the exercise of their discretion,
which is a function beyond the pro-