The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-03-07
BROWN GETS Il NEW GRIP
ON 1T.
Judge Frear Gives a Decision for
Plaintiff in the Famous
Suit.

decision in the case of c. a. Brown
VS.. C. n. Spencer. The decision is
in favor of the plaintiff, and it lays
down the law in very clear man,
ner. The suit was brought to en-
join Mr.. Spencer from exercising
the duties of tax assessor, to which
office Mr.. Brown lays claim. No
appeal has yet been noted. The
following is the full decision:
This is o suit in equity for an in
junction, and is brought for the pur-
pose of trying the title to the office
of Tax Assessor and Collector for the
Island of Oahu. 1t was begun in the
Supreme Court and was first heard
before Mr.. Justice Dole, then of that
Court, upon demurrer based on the
ground that the matter was not cog
nizabIe by Court of Equity. The
demurrer was overruled and the de-
PENDANT given leave to answer. Suisse
uuently the case was removed to this
Court by the provisions of the "Act TO
Re-organize the Judiciary Depart
ment.' The defendant answered and
the case was submitted without argu-
ment on bill and answer, briefs being
filed.
The facts of the case as shown by
the bill and answer are as follows:
On the 18th day of October, 1892,
the plaintiff, being then the duly APP
pointed and qualified Assessor and
Collector of Taxes for the Island of
Oahu, received from the then Cabinet
a written notification of his removal
from said office 'sfor reasons stated to
this Cabinet, and which are deemed
sufficient under the law" This was
signed by all the members of the Cabi-
net. No charges were preferred against
the plaintiff and no opportunity was
given him to meet the witnesses, if
any, against him, or to be heard in
his defense. On the same day the
then Minister of Finance signed
and delivered to the defendant
a document purporting to be
an appointment of the defendant to
said office, and to be made with the
approval of the Queen. The defend
ant thereupon entered upon the duties
of the office, and has ever since eXer-
cised the same. On the 18th day of the
same month the said Minister gave the
plaintiff statement in writing of the
reasons and specific facts relied on for
his removal.
The plaintiff claims that he is law
fully entitled to the Office, and that
the attempt to remove him therefrom
was void because no opportunity was
given him to be heard and he prays
that an injunction may issue restrain
ing the defendant from further eXercis- |
ing the duties of the Office, because the |
acts of the defendant are likely to |
cause great and irreparable loss to the |
plaintiff, and are prejudicial TO the |
public interests, and there is no ade-
quate remedy at law.
The defendant claims that he is law
fully entitled to the office by virtue of
his said alleged appointment; that
the plaintiff was properly removed
from the office, and had no right to a
hearing upon his removal, the sutfi-
cheney of the cause for such removal
being placed by law entirely in the
discretion of the Minister of Finance,
with the approval of the Cabinet.
Counsel agreed, by stipulation on
file, "that the sufficiency of the rea-
sons alleged, or the truth of the mat
tiers set up by the Cabinet, are not in
issue in this case, and are open to
either party without prejudice in any
other proceeding" and that the ques-
ton raised by the bill and answer is
the following: twas the action of
the Ministry in the matter of the
removal of c. A. Brown
from the office of Tax Assessor for the
Island of Oahu a valid exercise of the
powers granted by the statute?"
This is the sole question before the
Court.
Chapter XXXVI of the Laws of
1888 provides: "Section 2. The Min
lister of Finance, with the approval of
the Cabinet, shall appoint
an assessor and collector of taxes
for each taxation division of the king
dom.
"Section 8. Any such assessor
may be removed by the said Minister,
with the consent of the Cabinet,
whenever in his opinion such officer
shall be incompetent or corrupt, or
shall have failed properly to perform
the duties of his office, and successor
TO such office may thereupon be APP
pointed in the manner provided in
Section . of this Act: Provided, that
in case of any such removal the
said Minister shall, within two weeks
thereafter, give such person a state
ment in writing of the reasons and
specific facts relied on for such re-
moYal."
Under the statute, what is the asses
,ors tenure of office? Does he hold
office during pleasure, or during good
behavior? Is he removable at pleas
nre, or only for cause?
"Where an officer is appointed dur
ng pleasure, or where the power OF
,emoval is discretionary, the power
% remove may be exercised without
notice or hearing. But where the
is during good behavior,
or where the removal can only be for
certain specified causes, the power OF
removal cannot be exer- ,
,ised, unless there be a formulated
charge against the officer, notice to
him of the accusation, and u hearing
Of the evidence in support of the I
charge, and an opportunity given to {
the party of making defence" Dill
lon, Nun. Corp. 4th ed. sec. $50.
The Act of 1855 provides for the re-