The Hawaiian gazette., 1900-11-16
Determination Of Valid
ity of the Election.
OPINION OF E P DOLE
Attorney Generals Reply to Lawyers
Presenting Ltebtnstein's
Protest,

At the Governors council yesterday
the protest Of a. Il. Loebenstein against
the election of Mich. Russell of Hawaii
to the Legislature was discussed At
torney General Dole reported that Loe-
benstein's lawyers had lodged the pro-
test with him and asked his endorse
ment thereon, the ground taken being
that the election was without authority
of law, the Legislature having yet to
provide for the election of Delegate to
Congress. Attorney General Dole said
that he had replied to the lawyers that
he had no official concern in the mat
ter AT length his reply was as follows:
Territory of Hawaii,
Office of the Attorney General.
Honolulu, II. l., Nov. 18th. 1900.
l beg TO acknowledge receipt of your
favor of the 18th inst, saying, that as at
torneys for Mr. a. Il. Loebenstein you
wish to test the question whether, under
existing laws, a delegate to Congress can
be legally elected in this Territory; and
asking permission to file, on behalf of
the Attorney-General, proceeding in the
mature of quo warranto to test the right
Of one II. w. Wilcox to obtain "a GER
tificate of election to the said Congress,
and try his title to the said office"
l. 1t goes without saying, that in mat
paramount to political and personal con-
sideratons. The Attorney-General, act
ing as representative of a government,
should be 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 is, in effect, an
allegation on the part of the government
that the person claiming the office is not
entitled to it. 1t is an attempt to prevent
him from holding it. The papers you have
drawn for me to endorse are entitled Ter
rtory of Hawaii, on the complaint of A.
+. LOebenstein, VS.. Robert w. Wilcox,
and the complaint begins, "The Territory
of Hawai-by Il. =. Dole, its Attorney
General-complains, etc"
The election was held with such legal
machinery as Congress had given to the
Territory and with the approval and un-
der the direction of the local government.
1t did the best it could with what it
had to do with. Now, simply because
the result is not satisfactory to the COM
planant. can it repudiate its own acts
consistently with what plain people call a
square deal?
quo warranto is the proper course in this
case, the court has discretion to allow 1t
on behalf of any private individual, and
especially on behalf of a rival candidate.
1t is not necessary that the Attorney
General should be q party. The following
cases seem to be in line with the over
whelmng weight of American decisions:
1.-The objection that the writ can issue
only at the suggestion of the Attorney
General, and not of private relator, Is
not sustained. This would be true accord
ing to the Commonwealth v. Cluley, g r.
f. Smith 27O, and the cases cited on page
$50, had the relator here shown no private
interest in himself But prima facie, he
has an interest to GUST the defendant in
the apparent title conferred upon him by
aVN1 1.-Two
the fees of the office. Whether he or any
one else has true valid title to the office
of clerk OF the District Court is not a
question upon this motion to quash there
being a prima facie title in the relator.'
Commonwealth V. Swank, 70 Penn. State
Reports, 1876. "A quo warranto directed
to one holding the office of mayor of a
municipal corporation may be prosecuted
by private relator, but it will be grant
ed only after rule to show cause, and 1t
is within the discretion of the court
Commonwealth V. Jones, u Penn. State
Rep, 1866. 1T would be a vicious rule OF
law that would allow all public officers to
be annoyed by quo warranto at the pleas
ure of any inter-meddler or malicious per-
son, and, therefore, we have hestated in
granting this writ at the suit of a private
person; but II is quite apparent that the
relator here really represents a large and
respectable political party, and is not in
duced to act hv mere personal motives.
We can also prevent the abuse
of 1t by the exercise of the discretion that
belongs to al! prerogative writs"-COm-
monwealth eT rel. Yard V. Meesor, A
Penn. State Reports, 3il
Mr.. Loebenstein represents large and
respectable party" and, not having sane
toned and directed the election, can in
stitute proceedings with much better
grace than the government can.
g. ] think that the foundation for an
information in the nature of quo warranto
has not yet been laid, assuming for n
moment that 1t il the proper course In
this case. Such an Information is a pro-
Ceeding to try the right by which n man
holds an office. It is not sufficient that
he claims that he has been elected. or that
the newspapers say so. He must do some
PCT by virtue of that office before a court
intervene by writ OF quo warranto 10
put him out.
"There must be n possession and user
OF the office to lay n foundation OF pro-
ceedng," 10 American and English Ency.
OF Law, First Edition, page G72; Rex v.
Whitwell, Y. r. S5i Regina v. Armstrong,
Jur, ~ s., Eli; Rex v. Ponsonby, | Yes,
Regina V, Quayle, II A, & H., Dos; Regina
v Jones, Al, T. n s., 207; Regina " sat-
ter H. H., $685. state " Graham, 10
Kansas, 1879,
The nearest approach that | have found
among American cases 10 entertaining the
proceeding, without an actual entry upon
the duties Of the office, Is The People ca
rel, Michael Evans " Bernard Calaghan,
50 ~ l2A-l&, In this case the court says;
1T would seem 10 follow the taking tho
oath prescribed by law within ten days
after his appointment az was done by
defendant in his case, was an acceptance
and user ~ the once. n does not initiate
asalnst this view that defendant had dis
charged no actual duties " Tho once
iia had taken tho Oath " once hat
obligated him 90 perform 80 duties whom
called upoH n any authority " neces-
Hat wanting la Tho caRs ~ The KING
81 Tate I Fast ML " was htlii ITO
swearing in. though dpHeiiye in laNt YETI
hfing spoll, Thai whereby ihe pariy rlalm'