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

! ana, presumably the OOurI ii dpplltu ";
would interfere by injunction to prevent
countersigning Is the act OF the Audi
tor in allowing or disailowing an ac-
count in respect to its being applicable
to the service mentioned" ministerial or
one Of judgment, opinion, discretion? L
| think there can be no doubt OF its being
| OF the latter description. In the case
! before US the Minister OF the Interior,
who is not to be presumed to be design
! eddy making draft which is not in ac-
cordance with the law, and seeking too
! TO enforce it in Court, differs in opinion
! from the Auditor-General. 1t is mat
ter then OF judgment. In the case OF
| Castle VS.. Kapena, D Haw. at p. 81 the
! Court say: 1.-The Courts will not under
take to guide the judgment and discretion
| of public officers, which would be to as
sume the supervision OF all branches of
! Government, but will only intervene TO
compel the performance of purely minis
| terial duties" This doctrine will not be
ccntroverted High on Extraordinary
Legal Remedies, in Section ~ SAYS, that
sit is fundamental rule underlying the
entire jurisdiction by mandamus, and
especially applicable in determining the
limits to the exercise of the jurisdiction
over public officers, that in all matters
requiring the exercise OF official judgment
or resting in the sound discretion of the
person to whom a duty is confded by
law, mandamus will not lie either to con-
! troll the exercise of that discretion, or to
determine upon the decision which shall
| be finally given" ministerial duty it
would be to audit, that is to examine,
the account and approve or disapprove
! of it, and II the Auditor should decline
! to do that, there is no doubt of the juris-
! 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 a Magistrate or Board to
entertain an application legally to be
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-
fera with the exercise OF their discretion
nor attempt by mandamus to control or
dictate the judgment to be given"
Against the rule so expressed and
termed fundamental, the counsel Tor the
relator cites the case of Wood VS.. Strother,
76 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 writ of
mandamus to compel board, tribunal
or other officer to do an act which he
has refused to do, is not whether the re-
| fusal involves the exercise of discretion
- ir1If ntal hIIt
| whether it was a determination which
the law intended to be final; and if not,
whether there is a plain, speedy and
adequate remedy in the ordinary course.
| The matter was against an Auditor OF
| street contract accounts who by the Act
was required before countersigning to be
satisfied that certain proceedings were
legal. The Commission examining the
defendants return found from it that the
proceedings were legal, and so 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 a
mandamus be affirmed.
In ex parte Bradley Wall. at p. 377,
the language of the Court is: I" When
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 parte
Lecombe 10 Howard, 10; eX parte Burr
9 Wheaton $50. The ground of decision
in.Bradley's case was that the Court be-
low had no Jurisdiction to bar the relator
for a contempt committed before another
Court.
In the Village of Glencoe VS.. The
People, rs, Ill.,, 3S2, upon a petition to
the council for the appointment of time
for holding an election, while the council
had no discretion in the matter of order
ing an election, it had discretion in
selecting the time, and it was held that a
postponement for an unreasonable time,
such as would defeat the public purpose,
would be an abuse OF their discretion
which warranted that it be controlled by
mandamus. In the People VS.. The
Superior Court of New York, 10 Wend.
2S6, mandamus was issued to vacate
an order granting new trial when it ap-
peared by the return that the party in
| whose favor a new trial had been ordered
was chargeable with laches.
| will now discuss whether the case at
bar comes within the description and
principle of such as those wherein,
although the act of the officer or subor-
dinate tribunal is one of discretion and
judgment, it may be controlled when it
appears that there has been want of
jurisdiction, an abuse OF discretion, or a
plain or wilful misconstruction OF the
facts.
The bills presented for audit are as
follows:
| HAWAIIAN MISREPRESENTATION DEPART
| 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 90
In like form and date to the same
person as assistant jailor. ....., 80 90
In like form and date to NJ. Car
minos as night Waterman of this
jan ..'... -.'...- ..'.-.- ~ w
| Ditto to Kaiama for services as luna
over prisoners on the Volcano
Road for the month of January. 35 90
Ditto to ] F. Brown for do. 40 90
Ditto to c. Keanahou for d.. 80 90
Two other bills l will speak of here