The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1890-03-21

ercise Of the jurisdiction over pub
lie officers, that in all matters re-
curing the exercise of official judg-
ment or resting in the sound discrc.
ton of the person TO whom II duty
is conlidcd ny law, man damus will
not lie either to control the exercise
Of that discretion or to determine
upon the decision which shall hc
finally given" a ministerial duty
it would he TO audit, that is to cXa.
mine, the account and approve or
disapprove of it. and If the Auditor
should decline to do that, there is
70 doubt of the Jurisdiction of this
Court to issue its writ Of mandamus
to compel him to the performance of
his duty. Thus the Court will com.
pei Magistrate or a Board to enter
tain an application legally TO be,
made, and give some decision there
on. Quoting further from the above
cited section, "while it is proper by
mandamus 10 set in motion officers
vested with powers of discretion
airy nature, and TO require their
action upon the matters officially
entrusted to their Judgment and dis
cretion, the Courts will in no manner
interfere with the exercise Of their
discretion nor attempt by mandamus
TO control or dictate the judgment
10 be given.
Against the rule so expressed and
termed fundamental. the counsel for
the relator cites the case Of Wood
vs.. Strother as Cal. 545, and the
authorities therein assembled. The
case was heard before the Commits
sinners of the Court. 1t holds that
the test for the issuance of writ Of
mandamus TO compel board, tri-
bunal or other officer TO do an act
which he has refused to do, is not
whether the refusal involves the ex.
erCise of discretion or an exercise of
judicial power, but whether it was
determination which the law in
tended TO be final and if not, " neither
there is plain, speedy and adc.
quate remedy in the ordinary course.
The matter was against All Auditor
Of street contract accounts who by
the Act was required before coun-
tersigning to be satisfied that GER.
tain proceedings were legal. The
Commission examining the defend
ants return found from it that the
proceedings were legal, aEd so the
Auditor was wrong in his refusal to
counlersigned the warrant, and there
being nothing in that statute showing
that the determination Of the Auditor
was intended to be final, advised
that the order for mandamus he
affirmed.
In ex parte Bradley Wall. at p.
377 the language of the Court is:
when the act complained of rests
in the exercise of discretion, the
remedy of mandamus fails; but it
must be sound discretion and ac-
cording to law. Ex Earte Lecombe
10 Howard, l9; tx parte Burr 0
Wheaton $50. Tie ground of de.
cision in Bradley's case was that the
Court below bad no jurisdiction to
bar the relator for contempt CON-
mitted before another Court.
In The village Of Glencoe v. The
People. 70, III, 3S2, upon petit
ton to the council for the appoint
ment of time for holding an election,
while the council had no discretion
in the matter of ordering an election,
1t had discretion in selecting the
time, and 1t was held that a post
ponemeut for an unreasonable time,
such as would defeat the public pur-
pose, would he an abuse of their
discretion which warranted that it
be controlled by mandamus. In the
People vs.. The Superior Court of
New orl,, 10 Wcnd. 2o6, u manda-
mus was issued 10 vacate an order
granting a new trial when it appear
ed by the return that the party in
whose favor new trial had been
ordered was chargeable with laches.
l will now discuss whether the
case at bar comes within the descrip-
ton and principle of such as those
wherein, although the act of the
officer or subordinate tribunal is one
of discretion and judgment. it may
be controlled when IL appears that
there has been want of jurisdic-
ton, an abuse of discretion, or
plain or wllful misconslruction of
the facts,
The bills prestn ted for audit are
rs follows;
HAWAIIAN GovERNMENT---INTER
DEPARTMENT.
Per appropriation foo support
of prisoners DR.. to j. f. Sta
Piles for services Ms jailor OF
the Volcano road Jail for the
month ending January 81,
1890. ..........,... $4,000
In like form and date TO the
same person rs assistant
jailor, ,............,..... 5000
In like form and date to NJ.
Carminos us night Waterman
OF this Jail Observation-Disclosures. 1000
Ditto to Kaiama for services as
luna over prisoners on the
Volcano road for the month
OF January. ..........,.... $500
Ditto to j. +. Brown for do. -. 1000
Ditto to G. Keanahou for do. 80 90