The Hawaiian gazette., 1894-10-26

Legislative and Judicial powers of the
Republic to be preserved distinct.
The statute of 1890, imposing this
tax or port charge, clearly and dis
tinctly fixes a peremptory or manda-
tory duty upon the Collector General,
not involving any degree of judgment
or discretion on his part. This being
the case Mandamus will lie. High on
Extraordinary Remedies, Secs. 2i and
81, and cases there cited.
The japanese who came here on the
steamer in question were "passen-
gers" The statute of 1890 does not
exempt the ship from the tax when its
passengers are ''immigrantsi or "con-
tract laborers to the Board of Immi-
gration," or any class, quality or race
of passengers. We find the statute to
be plain and not doubtful in any of its
terms. The Legislature of 1890 could
well have exempted ships carrying
the class of passengers under discus
sion from this tax, but they have not
done so, and the Minister of Finance
cannot supply by construction what
the Legislature omitted.
We do not consider that the clause
in the contracts with japanese
brought here by the Board of
immigration that these persons shall
have "free passage" bears upon the
question whether the ship bringing
them shall pay the port charge for the
benefit of the Queen's Hospital. The
law does not impose the tax upon the
passengers themselves, and it is too
violent an assumption that if the ship
t,oiA - hA a1, xr-at,II hA
sengers pay it back.
1t was suggested that the Queens
Hospital has remedy by suit on the
respondents bond as Collector Gen
eral, and that therefore this Writ
should not issue. Sec. 2, of the Act
OF 1876 defining the Writ of Manda-
mus is as follows: "rhe object of this
order is to prevent denial of justice,
and it therefore issues in ali cases
where the law has assigned no specific
relief by the ordinary means of relief,
if the slowness of ordinary legal forms
is likely to produce such delay, that
the public good and the administra-
ton of justice will suffer from it, and
where justice and reason require that
some mode should exist of redressing
a wrong, or an abuse of any nature
The conditions of this case are
within this section. The remedy by
suit on the bond would be slow and
considering the fact that
the respondent acted under instruc-
tiOns from his superior.
1t is held in State VS.. Dougherty,
45 Mo. 294, that a remedy by suit on
N npHnio1 hs,nA far rFo
of official duty is inadequate.
High Elk. Rem. Secs. 80 and !39.
See In Re Richardson, 6 Haw. PIG.
Aikoe VS.. Hayselden, id. 534.
In Kendall V. United States, II
Peters, 615, the Court held that an ac-
ton against the Postmaster General
for damages would not be an adequate
remedy for his neglect of his official
duty in Withholding certain credits
from a contractor for carrying the
mail and say: "If the denial of the
right be considered as a continuing
injury, to be redressed by series of
successive actions, as long as the right
is denied, it would avail nothing and
never furnish a complete remedy.
1t would be remedy
IN name only and not in substance;
where the amount of dam
ages is beyond the capacity of the
party to pay"
We therefore hold that the respond
ent has not shown sufficient reasons
o justify his not collecting the tax
md peremptory mandate to collect
t may issue.
When this case was argued before
10 fha or IL IL
he port without paying the tax and
t was agreed between the Attorney
General and the counsel for the petit |
ioner that this fact should not affect |
he determination of this case, they |
lesiring decision upon the law in
yolved.
Carter & Carter for petitioner; At
orney General Smith and his Deputy |
Robertson for respondent.
Honolulu, October 19, 1894.