The Hawaiian gazette., 1890-05-13
OPINION OF MIR. JUSTICE BICKERToN
APPEALED FROM.

| APPEALED fROM.
The petitioner prays that writ OF
Quo Warranto do issue directed to
said George B. Norton enquiring by
what authority he claims to hold the
office of First Assistant Engineer of
the Fire Department, and directing
him to file his answer within the
time limited by said writ: that upon
due hearing the election for said
Assistant Engineer may be declared
illegal, null and void, and the said
Norton adjudged to have usurped
said office and be ousted from the
same, ETC., etc.
The defendant denies the plaintiffs
petition on the following grounds:
''1st. Because the Board of Repre-
sentatives of said Fire Department
are by law the judges of the validity
of elections of officers of the Fire
Department.
I'd. Because the complainant has
not set out in his petition any facts
which will support the same.
Sd. Because the remedy by Quo
Warranto is given by statute only in
cases of corporations"
And files motion to quash the
Writ as follows:
"Said defendant moves to quash
the writ issued in the above named
proceedings for the reason that there
is no authority of law for the issue
of the same"
This matter has been very fully
argued by counsel on both sides, and
shows that great deal Of work and
research has been done by plaintiffs
counsel to sustain his position.
/ have given this matter very full
and careful consideration, and have
come to the conclusion that the case
must be decided and disposed of on
the first ground of demurrer, viz:
That the Board of Representatives
of the said Fire Department are by
law the judges of the validity of
elections of the officers of the Fire De
partment.
The Act of 1888 relating to the Fire
Department of Honolulu is the law
under which this ground comes.
Section 4 reads: "The elections pro-
vided for in Section 2 of this Act
shall be conducted in such manner
as the bye-laws of the Department
shall prescribe. In case there shall
be no election, or any Office shall be-
come vacant the Minister of the In
terror shall direct a new election"
ETC., etc.
Section 10 provides that the Board
of Representatives shall have power
''to hear and determine appeals from
decisions of company matters and
OTHER appeals, and make rules and
regulations in all matters of appeal"
Also ''to make all necessary rules
and regulations for the holding of
any election or elections under this
Act, to make rules, bylaws and reg
ulations for the Fire Department and
for carrying out the provisions of
this Act"
These sections certainly give the
Fire Department full power to
do all things necessary for the
holding, conducting, and determin-
ing the result of elections, and
must of necessity include the power
to decide who is elected, where there
is any dispute. The Board of Repre-
sentatives do not preside at the cleo
tions. The secretary is chairman at
the election for engineers with two
tellers to assist him at the polls.
(Section 8, Bye-laws.) 1t cannot be
commended that his decision is final.
If the chairman's decision is not
satisfactory, or there are Irregular
ties, or fraud in the voting, there
must be an appeal from him. The
question is to whom? It can only
be to the Board of Representatives,
for the Act provides that they shall
hear and determine not only appeals
from decisions in company matters,
but all other appeals, and make rules
and regulations in all matters of ap-
peal. If it had been the intention of
the Legislature to have only pro-
vided for appeals in company mat
tiers, they would not have made these
other sweeping provisions. 1t is
clear to me the Legislature intended
to give and have given the Board of
Representatives full power to act in
all these matters. What can be
clearer than the language used in the
latter part OF Section 10? VIZ" to
make all necessary rules and regula-
tions for the holding of any election
or elections under this Act, to make
rules, bye laws and regulations for
the Fire Department, and for carry
ing out the provisions of this Act"
One of the provisions of the Act is
that there shall be chief engineer
and two assistants, to be elected
biennially. Under Section
4, in case of no election, the Minister