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

| $50.
Smith IS. Washington, 20 How
ard, 1876, AS.
Pontiac rs. Garter, % Mich. 1854.
The conversation with the Minis
ter of The Interior, set forth in the
bill, cannot affect this case. Such
Minister had no authority to ALLEVIATE
the Legislative power of the Govern
ment as to the grade of any street.
Even if such conversation could
be construed into a contract, it could
not preclude the proper authorities
from subsequently changing the
grade by Legislative sanction.
Gale rs. Kalamazoo, % Mich.
3i4.
Courts will not inquire whether
the grade adopted be the best one,
or whether one causing less damage
would not equally have answered the
purpose and the reason is that the
determination of such questions has
been committed by the Legislature
to the governing body of the corpo-
ration and not to the Court"
2 Dillon Nun. Corp, p. 1904, note
and cases cited.
By THE CoURT. THE first question
to be considered is: Is this proceed
ing a suit against the Government?
In order to answer this we must
ascertain from the bill of complaint
itself, what acts are complained of
and what relief is asked
The bill is not framed in a manner
to inform the court as to what spe-
citic laws the complainant relies
upon to entitle him to the relief by
injunction asked for, except the ale
cation that his property sis taken or
about to be taken for public use,
without due process of law or just
compensation" being the wording
of part of article Ii of tie Consti-
tuition, but from the argument and
the allegation in the bill "that the
defendant although requested to
cause such proceedings to be taken
in the premises for assessing the
damage likely to be sustained by
complainant or otherwise to compen-
safe him for such damage" we I'M
derstood the complainant to main
tain it to be the duty of the defend
ant to take the proceedings men
toned in Sections 1S4, 165 and 1876
of the Civil Code before commenc-
ing to grade the street in question,
and which dnty he has neglected
and refused to perform.
We are not aware of any other
proceeding provided by law for US
sessing damages occasioned to prop
erty affected by the + = "alter-
ing" of a street or highway.
In considering this part of the
case we do not consider it to be
necessary to refer to the allegation
asst o the conversations between the
complainant and the former Minister
of the Interior, as the bill does not
allege that the arrangement or I'M
Outstanding (if any arrived at be-
tween them is binding upon this
OF that it was his duty
not to alter the level of the street as
then existing.
The Attorney General relied prin
cipally upon I'm Re Ayers" 1913 Z. |
S. PIP. 443, SIG, in his contention that |
this is in effect a suit against the |
Government.
In that case it was held that suit |
brought to restrain the Attorney
General and other officers of the |
state from bringing suits pursuant
to statute in the name of the state,
and for its use in the state courts, /
was suit against the state within
the meaning of the constitutional |
provision that The judicial power
shall not extend to any suits in law
or equity commenced or prosecuted
against one of the United States by
citizens of another state, or by the
citizens or subjects of any other
foreign state"
This decision, if the facts of the
case now under consideration were
we might adopt, but in our
opinion they are entirely different.
Mr.. Justice Field, in his concur
ring opinion in the case cited, says:
There are many cases-indeed they
are of frequent occurrence where
officers of the state, acting under
legislation in conflict with the con-
stitution and laws of the United
States. NAV be restrained by the
Federal Courts as where those off
GERS attempt by virtue of such legis-
Station to take private property for
public use without offering compen-
iation, or in other ways to deprive
me of the use and enjoyment of his
1 do not understand that
he opinion OF the Court is against
he doctrine, but on the contrary
hat it is recognized and approved.
There is wide difference between
officers of the state from
in such cases with the
of the citizen and restrain
ng them from prosecuting a suit in
he name of the state in her own
ourts to collect an alleged claim"
The complainant here seeks to
estrain the defendant from proceed
ng with a public work, until he
las taken what are alleged to be
preliminary statutory steps to au-
horize the commencement of such
-oyI-