The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-08-27

louS, provides that 1t shall never be
refused when made by, or under
the direction of the Attorney-Ge
eral, and directs 10y Section g. the
Supreme Court, not only to deal
with the decision appealed against,
but to make such order as to costs
as it deems fit-was held by the
Queens Bench to include the
Crown, and to authorize an order
against it for the payment of costs.
The language of the second Section
was wide enough to include the
Crown; and as the fourth referred
to the Crown as plainly as if it had
spoken expressly of Crown cases,
the language of the sixth authoriz-
ing costs was construed as applying
to such cases also, as we'll as to cases
between subject and subject" ibid.
Sec. 166 and Moore Us. Smith, l E.
and E. 597, % l.. j., 1867. "Where
general rights are declared or reme-
dies given, by law, the common
wealth, though not named, is in
Guided" Commonwealth Us. 3.
and N. Railroad, 8 Cush. %, and
Endlich on the Interpretation of
Statutes, Sec. 167). alt is urged
that the Government is not bound
by law unless expressly named /;
we do not see why this rule of con-
struction should apply to acts of
legislation which lay down general
rules of procedure in civil actions.
The very fact that it is confined to
civil actions would seem to show
that Congress intended it to apply
to actions in which the Government
is a party, as well as those between
private persons. For the United
States is a necessary party in all
criminal actions, which are excluded
er III te,mini; and if it had been
the intent to exclude all other ac-
tions in which the Government is a
party, it would have been more
natural and more accurate to have
expressly confined the law to actions
in which the Government is not
party instead of combining it to civil
actions. 1t would then have cor
responded precisely with such in
tent. Expressed as it is, the intent
seems to embrace, instead of ex-
Guiding civil actions in which the
Government is a party" (Green
Us. y. s., 9 Wall, $751; When the
Act of 1888, providing for the
bringing of suits by or against the
Hawaiian Government, was passed,
the present laws and rules OF Court
relating to costs and attorneys fees
were in force, but the Legislature
chose to enact the law and to au-
thorize individuals to bring and
maintain suits against the Govern
ment without making any excep-
ton as to costs. The inference is
direct and strong that they intended
that the existing rules should ap-
ply to the Government as we'll as
to other litigants.
The statute does not say that the
Acknowledgement I" is forbidden to
accept any fee or reward for any
business to which it shall be his
official duty to attend" but that he
" shall not receive any fee or re-
ward from or on behalf of any per-
son or prosecutor, for services rem
dered in any business to which it
shall be his official duty to attend"
This appears to refer to professional
fees from prosecuting witnesses or
other persons interested in the re-
suit of any proceedings in which
the Acknowledgement may be Off
cially acting, so far as it refers to
cases before the Courts, but it
clearly does not refer to costs, for
the next Section recognizes his au-
thority to collect bills of costs by
virtue of his Office, and directs him
to account for the same to the Min
lister of Finance. This statute
pretty we'll covers the ground of
the question before The Court. l.
is not pretended that these costs
claimed by the Acknowledgement,
belong to him as private perqui-
site, but he is entitled to them in
his official capacity and that he
shall account for them is provided
for as we have seen.
1t is no new idea that one depart
ment of the Government should
owe and pay money to another de-
partment it is done every day and
the public bookkeeping is undoubt-
eddy made clearer and more simple
by the practice.
Feeling as 1 do, that this question
is not one of policy but of law, and
that the law does not except the
Government and that it cannot be,
and has not been, -argued that it |
excerpts Bowler,-the plaintiff in
The first named case, 1 adhere to
my original decision and dissent |
rom the opinion of the majority of