The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-11-16

w" MN ana asked his endorse
ment thereon. the ground taken being
th"t the election was without authority
OF law the Legislature having vet In
provide for the election OF Delegate 20
Congress. Attorney General Dole said
mat ne had replied 20 the lawyers that
ne had no official concern in the mat
ter NJ length his reply was as follows:
Territory OF Hawaii.
ONCE OF the Attorney General
/ Honolulu. ~. L.. Nov. l4th 1900
peg To acknowledge receipt OF your
favor OF the 18th inst, saying. that "a at
torneys Tor Mr.. A. h. Loebenstein Won
wish To test the question whether. under
existing laws. delegate to Congress can
ue legally elected In this Territory: and
askinE permission to file. on behalf OF
the Attorney General. a proceeding An the
nature OF quo warranto TO test the right
OF one X W. Wilcox to obtain a GER
uhcate OF election to the said Congress-
ana try his title to the said office"
i l. IL goes without saying. that IN a mat
ter OF this kind. official duty must be
paramount TO political and personal con-
siderations. The Attorney General. act
ing as representative OF government.
should he equally fair to men Of all par
ties. An Information In the nature of
quo warranto being brought In the name
OF the Attorney-General IL. In effect an
allegation on the part OF the government
mat the person claiming the Office Is not
entitled TO u. IL Is an attempt to prevent
him from holding H. The papers you have
drawn for me to endorse are entitled Ter
ritory OF Hawaii. on the complaint OF A.
B Loebenstein. vs.. Robert w. Wilcox.
and the complaint begins. THE Territory
OF Hawaii-by r. r. Dole. Its Attorney
lGeneral-complains. etc"
The election was held with such legal
machinery rs Congress had given 20 the
Territory, and with the approval and un-
der the direction OF the local government.
u did the best II could with what II
had TO do with. Now. simply because
the result n not satisfactory TO the COM
consistently with what plain people call n
square deal7
g N an information In the nature of
quo warranto II the proper course in this
ease. the court has discretion to allow u
on behalf OF any private individual and
especially on behalf of n rival candidate.
N Ia not necessary that the Attorney
General should be a party. The following
cases seem to be In line with the over
/. whelmina weight % American decisions
The objection that the writ can Issue
only at the suggestion OF the Attorney
General. and not OF private relator. IL
not sustained. This would be true accord
ing TO the Commonwealth v. Cluiey. II.
y smith 20 and the cases cited on page
1ss. had the relator here shown no private
I interest In himself. But prima facie. ne
has an interest 10 Dust the defendant In
the apparent title conferred upon him by
the act TO perform the duties and receive
the fees OF the ONCE. Whether he or any
ono else has true valid title 10 the ONCE
OF clerk OF the District Court II not n
question upon this motion TO quash. there
being n prima facie title In the relator."
-Commouwealth v. Swank, 70 Penn. State
. 20 one holding the office OF mayor Of a
: municipal corporation may be prosecuted
. by "A private reiator. but II will he grant
q ed only after n rule TO show cause. and II
. II within the discretion OF the COURT
= Commonwealth ". Jones, ~ Penn. State
: Rep. sGs. 1T would be vicious rule OF
. law that would allow all public officers "a
4 be- annoyed by quo warranto at the pleas
J. ure % any inter-meddler or malicious per-
= son. and. therefore. we have hesitated In
= granting this writ at the suit OF a private
q person: hut n II quite apparent that the
!. relator here really represents large and
respectable political party. and is not In
q duced TO act by mere personal motives
q . We can also prevent the abuse
]. OF ~ by the exercise OF the discretion thai
= belongs 20 all prerogative writs."-Com
y nonweaith ex rel Yard v. Meeser. y
b Penn. state Reports, 3ii.
n Mr.. Ioebenstein represents n large and
!. respectable party" and. not having sane
- toned and directed the election. can I'm
q stNute proceedings with much bettei
-
!. I think that the foundation for al
=. information In the nature OF quo warrants
= has not yet been laid. assuming for
% moment that II In the proper course II
q this case. such an Information Is a pro
q ceeding 20 try the right by which maj
holds an office. n II not sufficient tina
q he claims that he has been elected. or tha
n the newspapers say so. He must do som
q act by virtue OF that office before n cour
= can intervene by writ OF quo warranto Z
q put him out.
q There must be n possession and use
q OF the ONCE 90 lay n foundation Of a pro
ceeding." 10 American and English EncJ
q OF Law. First Edition. page 6T2; Rex '
q whitweil. 6 r. n. ~; Regina " Armstrons
Z. Iur. N. -. 21i: Rex v. Ponsonby. Yes
Jf. 4: 2 Hro. II. c.. 3ii: 1 Id Ken.
= Regina " Quayle. n A. a f.. sos; Regin
q v. Jones. Al. T.. N. s.. 207: Regina v. Slat
a ter. y. q r.. 2s3; state v. Graham.
1. Kansas. 1896
= Tho nearest approach that have foun
q among American cases 10 entertaining N
n proceeding. without an actual entry upo
I. tho duties OF the office. II The People Q
e. rel Michael Evans v. Bernard Callaghal
N m. f2s-i35. In this case the court say
70 CIT would seem 20 follow the taking ~
q oath prescribed hy law within ten day
- after his appointment. as was done 7
defendant IN this case. was an acceptan'
and user Of the ONCE. IL does not militia
aqainrt this view that defendant had di
charged no actual duties OF the ofhc
he had taken the oath OF office IN
obligated him 20 perform It's duties wn'
~ called upon. m any authority Is nece
~ cary 10 support this construction, "
not wanting. In the case OF The XII
v. Tate. 4 East ssT. II was held,
swearing In, though defective In law. "
being such. that whereby the party claii
"a nj the time TO be n free burgess OF Z
corporatlon. 10 he n sufficient user or :
once 10 warrant the information In q
nature OF quo warranto against MN,
M. same eject H. the case OF The M
ek HARDWOOD. 2 East. ~. In the case
-. dercndant had obligated himself.
the solefnnitIes OF an oath. 70 perform !
duties Of the ONCE he II alleged 20 ma
IA ,,s,rped and when the rule was laid up
MIN ne ought In all conscience, TO ma
Unclaimed. n he did not wish 10 DE