The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-03-25

OF the UnTOU0.
There is, as we see and are in
formed, no warrant in the repealed
statutes or in the presidents and
practice following thereafter for the
statement In the seventh article of
the respondents return that the
Chamberlain is public officer of
the Hawaiian Government, assigned
as medium of commu-
nication between His Majesty and
His Majesty's ministers,
or that he is necessarily cognizant
of many of the public
concerns of the Sovereign, and of
the affairs of the Government. The
Chamberlain attends no meetings of
the King and Cabinet, and has no
official knowledge of public bust
ness. If he is a medium of
communication between the King
and the Cabinet it is as a servant. If
he has influence with the King
which may be adverse to the policy
of the Cabinet it is only as a friend,
and the influence of the Kings
friends cannot be controlled.
The opinion of the Justices rem
dered to the Cabinet August 3,
| 1889, in reply to their request for
definition of the Kings powers I'M
der the constitution concludes that
"acts of the King are done upon
the responsibility of His Cabinet,
unless it appears from express words
or by the very nature of the case
that the act is of a personal charac-
ter" Holding, as we do, that the
office of Chamberlain is of a nom
political and non-legal character,
and the service personal to His
Majesty, his designation of the per-
son who shall perform the service
is an act of the latter description,
and the Cabinet is not responsible
for it.
The defense of res .judicata set up
in the second and third articles of
the return does not stand on the
principle which supports such pleas.
The plaintiff herein has not had an
adjudication against him which he
has allowed to become final. He
had appealed from the decision of
the Justice hearing his application
for a mandamus against the then
Minister of Finance. Before the
case could be heard by the Appellate
Court, the Minister, Mr.. Green, had
resigned. 1t would then have been
futile to proceed to obtain man
damus directing VIM. L. Green to
pay money from the Government
treasury. 1t was impossible to SUBJ
stitute Samuel M. Damon in the
appellate proceedings inasmuch as
he had not made the refusal on
which the mandamus was asked.
The plaintiffs proceedings in the
first instance, therefore, terminated
without prejudice, and it would be
a denial of justice not to allow him
to commence again, after demand
on the new incumbent, which was
refused.
See y. s. VS.. Boutwell,, II Wal
lace, 604.
The third ground upon which
the payment of the salary is refused
as set forth in the sixth and tenth
articles of the return is that the
petitioner bias not in fact perform
ed the duties of the Office. In this
case the petitioner makes replica
ton by affidavit that while absent
from the Kingdom he was perform
ing duties for His Majesty, having
gone abroad by his command, and
that provision was made for the
performance of Chamberlain's duties
near his person by a vice Chamber
lain whom he pays out of his salary.
This is duplicate or collateral de-
tense, not consistent with the
ground that the relator was not the
Chamberlain for the want of suf-
ficient appointment. In consider
ing whether he performed Cham
berlain's duties, we treat it on the
ground that he was duly appointed.
Can the Minister of Finance inquire
into the performance of the duty
of an Office by the incumbentthere-
of and refuse to the pay salary if
he judges there has been no per-
Torrance. The first answer in this
particular case of a personal ap-
pointment held at the pleasure of
the appointing power would be,
that if it is satisfactory to him the
Minister of Finance may not ex-
anime into the performance of the
service. And this rule may be
carried further. Could it be claim
ed that the Minister can pass upon
the right to salary of any clerk or
ether appointee of any of the De-
partments ? But the rule extends
still further, to public officers other
than those holding at the pleasure
OF appointing powers, that is to say,