The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-02-27

are allowances to three Royal person
ages. the fifth is for His Majesty's house
hold expenses. 1t is not obligatory on
the King to appoint a Chamberlain. tie
might appoint one without this extra
provision for salary, paving HIM out OF
the grant which he receives for the State
and expenses of the occupant OF the
throne
There is. as we see and are informed,
no warrant in the repealed statutes or IN
the presidents and practice following
thereafter, for the statement, In the
seventh article of the respondents return,
that the Chamberlain is public officer
OF the Hawaiian Government assigned as
a medium OF communication between His
Majesty and His Majesty's Ministers, or
that he is necessarily cognlZant OF any of
the public concerns of the Sovereign and
of the affairs OF the Government. The
Chamberlain attends no meetings of the
King and Cabinet and has no official
knowledge of public business. He is
only a medium of communication be-
tween the King and the Cabinet as
servant. Ii he has influence with the
King which may be adverse to the policy
of the Cabinet, it is only as a friend, and
the influence of the Kings friends cannot
be controlled.
The opinion of the Justices rendered to
the Cabinet August 3, 1889, in reply to
their request for = definition Of the Kings
powers under the Constitution, concludes
that, ''acts of the King are done upon
the responsibility of his Cabinet, unless
it appears from express words or by the
very nature of the case, Il at the act is Of
a personal character Holding as We
do, that the office of Chamberlain is of
non-political and non-legal character,
and the service personal to His Majesty,
his designation OF the person who shall
perform the service is an act OF the latter
description, and the Cabinet is not re-
sponsible for it,
The defense of res judcata set up in the
I'd and Sd articles of the return does not
stand OH the principle which supports
such pleas The plaintiff herein has
not had an adjudication against him
which he has allowed to become final
He had appealed from the decision of
the Justice hearing his application for a
mandamus against the then Minister of
Finance Before the case could be heard
by the Appellate Court the Minister, Mr..
Green had resigned. 1t would then
have been futile to proceed to obtain a
mandamus directing VIM l.. Green to pay
money from the Government treasury 1t
was impossible to substitute Samuel Nj.
Damon in the appellate proceedings in
asmuch as he had not made the refusal
on which the mandamus was asked.
The plaintiffs proceedings in the first
instance therefore terminated without
prejudice, and it would be denial of
justice not to allow him to commence
again after demand on the new incum-
bent which was refused. See U. 8. vs.
Boutwell,, II Wallace GOA.
The third ground upon which the pay
ment of the salary is refused as set forth
in the sixth and tenth articles of the
return is that the petitioner has not in
fact performed the duties Of the office.
In this case the petitioner makes replica
ton by affidavit that while absent from
the Kingdom he was performing duties
for His Majesty, having gone abroad by
his command, and that provision was
made for the performance of Chamber
lain's duties near his person by a vice
Chamberlain whom he pays out of his
salary. This is duplicate or collateral
defense, not consistent with the
ground that the relator was not the
Chamberlain for the want of a sufficient
appointment. In considering whether
he performed Chamberlain's duties, we
treat it on the ground that he was
duly appointed, Can the Minister
of Finance inquire into the per.
foimance of the duty of an office by
| the incumbent thereof and refuse to pay
the salary if he judges there has been nc
| performance. The first answer in this
particular case of personal appointment,
held at the pleasure of the appointing
power would be, that if it is satisfactory
| to him the Minister Of Finance may moi
examine into the performance of the ser
vice. And this rule may be carried
Minister can pass upon the right to sal
airy of any clerk or other appointee OF any
of the Departments? But the rule ex
tends still further,to public officers Other
than those holding at the pleasure of ap
perior officers holding office by commits
sion. 1t is clearly established that the
compensation of an Office does not de-
pend on time or labor expended in dis
charging the duties of 1t, but upon the
Any other rule than this would admit ar
| lltOlcIdUic SCTutlIS ny tilc MlIllSlc[ "
Finance into the measure of the service!
OF every officer in the Government, anC
the principle legitimately carried ou
would empower the Minister to make
partial payments in proportion to tn,
amount of the service as he should de
termine it. Not in this way can faithful
performance of duty be insured or tn,
omission OF it be punished.
People VS.. Tieman, s Abb. 359.
Mayfield vs.. Moore, 53 Ill. 42S.
Com. VS. Bowman, 25 Penn. %.
O'Leary VS.. Board of Education, O.
N. Y. l.
Dorsey vs.. Smyth, % Cal. q.
The writ is ordered to be made abso
lutte.
A. F. JUDD,
LAWRENCE MCCULLY,
RICH'D. F. BICKERTON.
February 26, 1890.
Paul Neumann and Charles l.. Carte
for the Relator; c.. W Ashford, Attor
ney-General, and A. p. Peterson, Dep
uty, for the Respondent.
In addition to the above opinion OF thu
Court, Chief Justice Judd filed add
tional views.
Mr.. Justice Dole filed dissentin,
opinion.