The Hawaiian gazette., 1890-03-25
TIE MANDAMUS CASE.
Erect of the Decision-The Prisoners
oblieed to Remain In Idleness-In-
.srview with the Minister of the

The decision OF the court In the man
damus case between the Minister OF the
Interior and the Auditor-General is a
subject of interest TO the public; but ow-
inc 10 its great length, the true inward
ness of the decision and its effects, are
not comprahended by many For the
nnrpose of ascertaining what the pro-
hahle effects of the judgment will be and
what action will be taken by the Gov
eminent, a representative OF the ADvER-
r5srR sought the Minister OF the Interior
| ana asked him if he would answer few
questions concerning the subject. Upon
the Minister signifying his willingness,
| he was asked:
.What is your opinion concerning
Judge McCully's decision?"
THAT is rather broad question, and
requires a broad answer.
'1In the first place 1t is distinctly a
piece OF judicial legislation.
'In the second place | consider it an
attempt at usurpation on the part OF the
Judiciary, OF the legitimate and necessary
| control and discretion OF the Executivein
carving on the business Of the Govern
ment."
This answer being about as 'broad"
as the question, the further question was
asked:
"What do you mean by judicial legis-
lation?"
''By judicial legislation l mean deci-
SION bv Judge in which he departs from
his legitimate Junction OF interpreting the
law as he finds it, and assuming the
duties of a legislator, either adds to,
strikes out words from a statute, or ig-
nores them, thereby giving such statute
a meaning different from the original
meaning intended by the Legislature"
''Do YOU mean that Judge McCully has
done so in this case? '
That is precisely what l mean"
"In what respect do you consider that
he has ignored or added words to any
statute ?"
''There are at least three instances Of
il Section 2l5 OF the Civil Code directs
that All prisoners sentenced to impris-
onment at hard labor shall be constantly
employed for the public benefit on the
public works, or otherwise. as the Mar
shall, with the approval OF the Minister Of
the Interior, may think best
Section S OF statute of 1862 directs
that
The Minister of the Interior is here
bv empowered in his discretion, to de-
tail Tor labor on any public road, upon
application to that purpose from any
Road Supervisor, as many prisoners as
ne NAV deem necessary for such work /;
said prisoners to be under the care OF
their usual overseers and subject to the
Road Supervisors only as lar as regards
the mode OF their employment.
"Thatappears 10 be clear distinct Eng
fish, directing that the prisoners shall be
employed upon the public works, and
vesting in the Minister of the Interior the
discretion to direct upon what works,
and more particularly what roads, they
shall be employed and yet this de-
cision legislates that meaning out
OF existence by adding to the
statute, in substance, the following
words Provided, however, that the
Minister OF the Interior shall NOT have
the discretion to direct the prisoners to
labor upon any public wor or any
public road for which there is an appro-
priation, unless the prisoners are sup
ported out OF such appropriation while SO
engaged, and ii such appropriation has
become exhausted, the Minister OF the
Interior shall no longer cause the prls-
oners to work upon the public roads and
other works, but shall confine them in
idleness.'
Having legislated discretion out
of the Minister of the Interior and nulli
fed the statute commanding that pris-
oners shall be employed upon the public
works under the direction OF the Minister
of the Interior, the Court proceeds to
legstate discretion into the Auditor
General. Section of the audit act says
that Every account shall be considered
duly authorized that is in accordance
with any existing law or regulation, or
has been directly sanctioned by one or
other of the responsible Ministers OF the
Grown and covered by any appropria-
ton act in force at the time OF payment.
"This might seem to indicate
that the members OF the Cabinet have
something to say concerning bills and
what appropriation they should be
charged to, but the Court is equal to the
occasion, and proceeds to legislate abso-
lutte discretion into the Auditor-General
by adding, in substance, these words to
the law: Z" Provided, however, that if
the Auditor General shall differ in
opinion with any Minister, or the whole
Cabinet, as to which of two appropria-
tions bill shall be charged, or as
to whether it shall be paid at all, the
Auditor-General shall have the absolute
decision OF such question from which
there shall be no appeal; and if the
auditor shall have audited bills OF a pre-
cisely similar nature for the same pur-
pose for TWENTY-FIVE months, making no
objection thereto, and after obligations
have been incurred, without previous
notice, refuses to audit the bills for the
twenty-third month, the auditor shall
inform the Minister that he is not bound
by precedent but acts upon principle"
''The result of the decision is that the
Cabinet are no longer the executive
heads OF the several departments, but
the Auditor General is constituted SUI
preme Autocrat with all the authority
and control, while the full responsibility
OF keeping affairs in running order is left
to the Cabinet"
Even this is not sufficient to satisfy
the Court. but the decision is based upon
a side issue not at all german to the real
issue. The Legislature made an appro-
priation of $4,000 for the period, for the