The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-11

duties. 1t is almost throughout in
the same words as the Act Of 1862.
His duties are again referred to
Sections 1080-1095. The Act would
seem to have been passed solely to
state his position as "being appoint
ed by virtue of an article of the Con-
stitution," but although thus placed
for the first time under the Consti-
tuition and made a member of His
Majesty's Cabinet, his duties in re-
lstion to prosecutions, and his status,
rights, privileges and powers in the
courts are unchanged from those of
the officer who was created by stat
ute only.
From this review OF all the statutes
touching the rights and duties Of the
Attorney-General, l ain Of the opin-
ion that the procedure which l have
stated to be the custom Of the Court
and Of the Acknowledgement, is in
accordance with our law, and accords
with the Interpretation hitherto given
by the Court and the Attorneys-Gen-
eral.
II is we'll established precedent
of practice based on the law. cam
not set it aside. If it does not now
and further commend itself the Leg
islature can enact a statute authoriZ-
ing another procedure.
The counsel for the Attorney
General says in argument: "If the
judicial power can be extended TO
requiring the Attorney-General
" to prosecute any speci-
fed case on penalty of fine or i'm
prisonment this would not permit
the exercise OF executive and judi
cial powers TO be preserved d stinct
it would annul the discretionary
and voluntary exercise of executive
power, so far as the Attorney-G en-
eral is concerned" This in my
view is misapprehension of the
matter in discussion.
The Court has not ordered the
prosecution of this case. 1t cannot
and it will not do so. 1t has simply
refused to approve and allow mo-
ton for nolle prosequi upon the
reason stated.
1t has not and will not "iine or
imprison an Attorney-General' for
contempt by reason of not prosecut-
ing case.
1t will be observed that l do not
agree in terms with the statement in
the opening of the argument of
counsel-"The Acknowledgement
having mol. pros'd the case y
= the Court said its consent was
required which it refused to give"
The Court said it would take time
to consider (the reason offered) and
it could not treat the motion as
made otherwise than in accordance
with the established precedent OF
practice and procedure. This differ
ence in statement is however only
the difference which constitutes this
controversy on the part of the At
torney-General and his counsel. 1t is
not question of yeracity as to facts.
Having thus given the opinion OF
the Court upon the abstract question
argued by counsel, and holding
against his contention, and he hav,
ing made no argument addressed tc
the discretion of the Court upon its
previous ruling to grant leave to
mol. pros. the case of Robertson,
that ruling might stand. But as
this particular case has been vir.
tually brought up by allowing the
further argument to be made / have
reconsidered that ruling.
| have examined the evidence
given in the previous trial, except
ing that of Magoney the absen
witness. There are six witnesse.
besides him. On their testimony, il
given in a magistrates court,
should find q true bill of indictment
| express no opinion upon the pro
per or probable result Of trial. Il
is only an opinion that it is cast
to be put on trial.
| But this the Court cannot order
If, when it is called for trial, tn,
Attorney General. being present il
person or by deputy, does not pros
ecute, it will stand not prosecuted
in fact, but without the entry 0
nolle prosequi. The Attorney-Gen
eral will take his own course.
If it shall proceed to trial, | Wi
ask one of my brethren on the Benc
to hold the trial, not because | deer
myself to have, or to have indicated
any bias in the defendants case, b,
withholding my concurrence to dis
missing him without trial, but BIZ
cause by the collision which ha
arisen from this case, between th
Court and the Attorney-General,
sensitive condition of public feelin
has been induced, under which
might be imputed that my ruling
were over strict against the defent
ant, urging his conviction, or wei
too favorable from fear of the 9th,
imputation. l.. MoCuLLI,
Justice Supreme Cour
July IL, 1889.
Whan tha fhraunin0 had hoe