The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-03-22

dly making . draft which ID not in &C.
with the law, and seeking too
o enforce il in Court, differs in opinion
rom the AUDITOR General. Il Is = mat
er then At Judgment. In the case Of
.sstle va. Kapens. S Haw. At D. 81 the
,ourt says: 1.-THE Courts will not under
AXE TO guide the Judgment and discretion
u public officers. which would be to ~
Iune the supervision Of oil branches of
Government. but will only intervene TO
compel the performance Of purely minis
eFial duties. This doctrine will not be
High on Extraordinary
Legal Remedies, in Section AZ says, that
't Is fundamental rule underlying the
entire jurisdiction by mandamus, and
applicable in determining the
limits 70 the exercise of the jurisdiction
over public officers, that in all matters
the exercise Of official judgment
" resting in the sound discretion Of the
person to whom . duty il confided by
law, mandamus will not lie either to con-
troll the exercise Of that discretion, or TO
upon the decision which ehall
be finally given" A ministerial duty it
would be to audit, that is to examine,
the account and approve or disapprove
Of it, and if the Auditor should decline
to do that, there is no doubt OF the iuris-
diction Of this Court to issue its writ of
mandamus to compel him to the per-
Torrance Of his duty. Thus the Court
will compel Magistrate or q Board to
entertain an application legally to he
made, and give some decision thereon.
Quoting further from the above cited Sec
ton, while it is proper by mandamus to
set in motion officers vested with powers
Of discretionary nature, and to require
their action upon the matters officially
entrusted to their judgment and discre-
tor, the Courts will in no manner inter
fere with the exercise of their discretion
nor attempt by mandamus to control OF
dictate the judgment to be given"
Against the rule 50 expressed and
termed fundamental, the consul for the
relator cites the case of Wood Va. Strother
IS Cal. 545, and the authorities therein
assembled. The case was heard before
the Commissioners Of the Court. 1t holds
that the test for the issuance of q writ oil
mandamus to compel . board, tribunal
or other officer to do and act which he
has refused to do, lie not whether the re.
fusal involves the exercise of discretion
or an exercise Of judicial power, bu,
whether it was q determination which
the law intended to be final; and if not
whether there is . plain, speedy and
adequate remedy in the ordinary course
The matter was against an Auditor o.
street contract accounts who by the Acl
was required before countersigning to bt
satisfied that certain proceedings wers
legal. The commission examining the
defendants return found from it that the
proceedings were legal, and 80 the Audi
tor was wrong in his refusal to counter
sign the warrant, and there being moth
ing in that statute showing that the de
termination of the Auditor was intended
to be final, advised that the order for
mandamus b. affirmed.
In ex parte Bradley Wall. at D. 377
the language of the Court is: "Wher
the act complained Of rests in the exer
else of discretion, the remedy of manda
mus fails; but it must be sound discre
ton and according to law" Elk part,
Lecombe 10 Howard, 13; ex parte Bur
Wheaton $50. The ground of decision
in Bradley's case was that the Court be
low had no jurisdiction to bar the relate
for contempt committed before anothe
Court.
In The Village of Glencoe v. Tn
People, 70. Ill, 1872. upon q petition Il
the council for the appointment of tim
for holding an election, while the council
had no discretion in the matter of order
ing an election, it had discretion il
selecting the time, and it was held that
postponement for an unreasonable tune
such as would defeat the public purpose
hA nh az khas~ -,
which warranted that it be controlled b.
mandamus. In the People We. Tn
Superior Court Of New York, 10 Wend
286, q mandamus was issued to vacat
an order granting new trial when it ar
peared by the return that the party il
whose favor new trial had been ordere
was chargeable with laches.
will now discuss whether the case q
bar comes within the description an
principle of such as those wherein
although the act of the officer or subol
dinate tribunal is one of discretion an
judgment, it may be controlled when
appears that there has been a want {
jurisdiction, an abuse of discretion, or
plain or wilful misconstruction of tn
facts.
The bills presented for audit are a
follows:
HAWAIIAN GovERNNENT-INTERIoR DEPAR1
MENT.
Per appropriation fOr) support of
prisoners, DR.. to ]. E. Staples for
services as jailor of the Volcano
road Jail for the month ending
January 81, 1890. .............. $50 0
In like form and date to the same
person as assistant jailor. $500. 30 Q
Tn 1iko form, onA Aofo ~
minos as night Waterman of this
jail ..................... Az
Ditto to Kaiama for services as luna
over prisoners on the Volcano
road for the month of January IS O
Ditto to ]. f. Brown for ditto $3.50 40 Q
Ditto to 9. KeanahOu for ditto. 80 @
Two other bills will speak of here
after.
The Auditor. General considers tina
these are bills of expenditure on tn
Volcano road. Per contra it is cor
tended that they are items of expens
for the prisoners, who must have jailor
and lunas or overseers Of work. Their
is, / believe, no separate appropriation
for the payment of these, only the salar
of Tailor Of Oahu Prison being speciall
provided for. And that it is not to
considered where the prisoners, wit
their attendant expenses, are employee
in pursuance of the requirement of til
law that they be employed on publ
works and roads.
The settlement of the controvers
must depend on the consistent il
| depreciation of this law with the Al
preparation Act. / do not thin
this is difficult and my view il this
The law requiring prisoners to be en-
| ployed in labor upon public works is tn
authority and direction of the Minister {
| the Interior aS to the nature of the labC