The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-24

Legislative and Judicial powers of til,
| Republic TO be preserved distinct.
/ The statute of 1880, imposing thi!
tax or port charge, clearly and dis
| tinctly fixes peremptory or manda-
\ tory duty upon the Collector General
I not involving any degree of judgment
/ or discretion on his part. This being
I the case Mandamus will lie. High or
Extraordinary Remedies, Secs. - and
81, and cases there cited.
The japanese who came here on the
steamer in question were "passen-
gers" The statute of $50 does not
exempt the ship from the tax when its
passengers are Immigrants" or ICON
tract labOrers 10 the Board OF Immi-
gratiOn,n or any class, quality or race
Of passengers. We find the statute 10
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
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 Queens Hospital. The
law does not impose the tax upon the
passengers themselves, and it is too
violent an assumption that if the ship
paid it the ship would make the pas
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 Nanda-
mus is as follows: "The object of this
order is to prevent a 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
uncertain, considering the fact that
lions from his superior.
1t Is held in State VS.. Dougherty,
ID Mo. 294, that remedy by suit on |
IN official bond for non-performance
If official duty is inadequate.
High Elk. Rem. Secs. So and I39.
See In Re Richardson, Haw. 2I6. |
Aikoe VS.. Hayselden, id. 534.
In Kendall V. United States, u !
Peters, els, the Court held that an ac-
ion against the Postmaster General !
or damages would not be an adequate
emedy for his neglect of his official
uty in Withholding certain credits
rom a contractor for CARRYING the
nail and say: s1f the denial Of the
light be considered as a continuing
injury, to be redressed by series of
uccessive actions, as long as the right
) denied, it would avail nothing and
ever furnish q complete remedy.
1t would be a remedy
n name only and not in substances;
specially where the amount of dam
ges Is beyond the capacity of the
arty to pay"
We therefore hold that the respond
Mt has not shown sufficient reasons
, justify his not collecting the tax
nd peremptory mandate TO collect
may issue.
5 the steamer in question had left
lie port without paying the tax and
was agreed between the Attorney
eneral and the counsel for the petit
oner that this fact should not affect
lie determination of this case, they
ssiring decision upon the law in
olved.
Carter & Carter for petitioner; At
rney General Smith and his Deputy
obertson for respondent.
October 19, 1894.