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


him of the salary appropriated by
the Legislature of 1888 for His
Majesty's Chamberlain, but that
the respondent undutifully and
unlawfully refused and still refuses
to pay the same or any part thereof,
alleging as his reason that the
Cabinet has not sanctioned the ap-
pointment of your petitioner to the
Office of Chamberlain as aforesaid,
and for that said appointment does
not meet with the approval of the
Cabinet, all Of which doth more
fully appear by the copies of the
correspondence which has passed
between the said Samuel M. Damon,
Minister of Finance, and your petit
toner, hereuntO annexed, marked
Exhibit B., and made a part here
OFF,
The plaintiff claims to be entitled
to three thousand dollars for twelve
months service as such Chamberlain,
and prays for a writ of mandamus
to compel the respondent to make
payment thereof, or show cause for
refusing.
Such an alternative writ was
issued returnable on the 18th day
of November, A. d. 1889, before
Judd, CT, in Chambers.
The respondent in his answer
gives three reasons why he cannot
be legally called upon to pay the
said salary, to-wit:
First: That the case of George
w. Macfarlane Us. William L.
Green, Minister of Finance, was
similar proceeding with the present,
and for a portion of the identical
sum of money claimed herein; and
that in those proceedings it was adj
judged that the petitioner had not
shown himself entitled to the salary
therein claimed, and that such judg.
ment still stands as decisive adj
Indication of the claim in the said
cause.
Second: That the alleged ap-
pointment of the petitioner is in
valid because it has not received
the approval of His Majesty's Min
listers or any of them.
Third: That during the year
next following such alleged ap-
pointment of the petitioner as
Chamberlain, he did not perform
the duties Of Chamberlain, being
absent from the Kingdom during
the greater part of such year, the
said duties being performed by an
other.
The correspondence exhibited is
occupied mainly with a discussion
Of the second and third grounds
above set forth.
A hearing was had on the 21st
day OF November, A. d. 1889, be-
fore the Chief Justice, who reserved
the questions raised fer the consid-
Grafton of the full Court.
In regard to the first ground Of
defense, i.e., that the Judgment
entered in the case of George ".
Macfarlane Us. William L. Green,
Minister Of Finance, has finally adj
Indicated portion of the present
claim: 1t is clear to me that the
position is untenable. An appeal
was made from that decision to the
full Court, which appeal was abated
by the resignation of William l..
Green from the Office of Minister
of Finance. The effect of the ter
mination of the case at that stage,
i.e., pending appeal, by abatement,
could not be different from the effect
of similar disposition of the case
while it was pending in Chambers,
which would simply be a cessation
of the proceedings without pre-
judice.
The second cause shown by the
respondent why he cannot be legally
called upon to pay the claim, lie,
that the alleged appointment is
invalid without the approval of the
Ministry, or any of them, which
has not been given, necessitates a
consideration of the principles of our
government.
From the death of Kamehameha
l. until the PRONUNCIATION of the
present Constitution, the executive
authority of the Government was
shared between the Sovereign and
Kuhina Nui, or the Ministry. The
office of Kuhina Nui became obso-
lete in 1864 with the abrogation of
the Constitution of 1852. The exc
cutive power of the Sovereign was
somewhat increased by the Consti-
tuition granted by Kamehameha ",
in 1854, for although it enacted
that sno act of the King shall have
any effect unless it be countersigned
by Minister" it also provided in
the same article that the Ministers
"shall be appointed and commits
stoned by the King, and hold office
during His Maiasfvjs nlaosr1ro s,.h