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

garded in possession OF the office. A
majority OF the court are of opinion the
user and possession of the office by de-
PENDANT are sufficiently shown by the
petition to warrant the court in permit
ting the Information to be fled" (The
People ex rel Michael Evans V. Bernard
Callaghan; S3 H., 12s-135)
Mechem's Treatise on the Law of Public
Offices and Officers, to which you have
called my attention authority that
an Information in the nature of quo war
ranto may be maintained before the de-
PENDANT takes possession Of the office. de- |
clares: (Section f32.) ut is indispensable |
TO the Jurisdiction in quo warranto that |
the respondents should be shown to have !
been In the actual possession and user OF
the office. II Is not enough that he should
claim the office. but an actual user must
be shown"
4. The constitution OF the United States |
I'm my opinion. deprives the local courts
OF Jurisdiction In the premises. and makes
the validity of the congressional election
a question with which the Attorney-Gen-
eral Of the Territory has nothing TO do.
Article I. Section OF the Constitution, de-
clares that: Each house shall be the
Judge OF the elections. returns and quail
fications of its own members"
Neither In England nor in the United
states are there many offices of the legis-
lative character which can be said to be
within the reach OF a quo warranto.
About the only offices of this kind are
members of the city council: the legisla-
lures Of the various states, both houses
OF Congress. and the English Parliament
being the sole judges of the elections, re-
turns and qualifications of their mem
bers: and where a legislative body has adj
judged a person to be entitled to a seat,
court has no jurisdiction in quo war
ranto to GUST him." 10 Amer. and Eng.
Ency. OF Law. End edition. page 7T: State
Tomiinson. % Kansas. e92. by the
constitution OF the United States 1t is pro-
vided that each house OF Congress shall
be the Judge OF the elections, returns and
qualifications of its own members: and by
the constitutions in the different states,
each house OF the state legislature has the
same power over the election of members
as the houses OF Congress. This jurisdic
ton over the election Of members excludes
the Jurisdiction OF the courts. although
the canvassers may be compelled by man
damus TO conduct the canvass declaring
tho results in accordance with law. thus
giving the person holding a certificate the
prima facie right TO the seat and COM
polling the other party to begin the con-
test" 10 Amer. and Eng. Ency. of Law,
End edition. page SIS.
"The 21st Section of the Second Article
OF the constitution imperatively requires
that: The general assembly shall de-
termine by law before what authority. and
In what method. the trial of contested
elections shall be conducted. In fulfill
ment of the solemn obligation thus impos-
ed. we find upon the statute book, in the
: election laws OF the state. Jurisdiction
specially conferred upon various tribunals
TO hear and determine contests in regard
10 the election Of the different public Of
? fcers. and the mode prescribed In which
such contests shall be conducted. The
, courts of common pleas in the several
counties are especially designated az the
+ authority before which the election of
: sheriffs. and the various other county of
. ficers. shall be contested and by which
:. such contests shall be heard and de-
!, tcrmncd. The senate of the state is, by
B., the same laws. invested with full juris-
!; diction 10 hear and determine any con-
n test in regard to the election of governor
: ACKNOWLEDGEMENTS. judge of this court
2 or OF the court of common pleas, and
other state officers. This legislation being
q not merely permitted. but .enjolned by tht
q constitution, has. In effect, the same higf
n sanction as though Il formed a part Of
K that instrument. Jurisdiction being thu:
!, specially conferred upon other tribunals
=: and the mode of its exercise prescribed
IL n cannot be inferred that IL was intend
n ed by the constitution to be differentl,
y exercised by proceeding In quo war
e ranto, as at common law, or by the su
te preme court ard district courts, under
- mere general grant of jurisdiction In qu
O. varranto Public offices I'm this state d.
NJ not exist in virtue OF the common law
m THEY are the creatures of the constitution
= and the statute. The right to an electiv
- ONCE. such as that Of sheriff. can onl
ig be acquired by an election, pursuant I
he the provisions OF the statute. And II
4. a settled rule that where new right
n or the means OF acquiring IL. Is conferred
he and an adequate remedy for Its invasio
he is given by the same statute. parties ir
ne iurcd are confined to the statutory re
Of dress" Smith V. Lockwood. 10 Barb 20
M Drdlev " Mayhew a. Const 2: Sedgv
M o. qfat ond Const. Law. o. 9Th
w state senate IL. as we have said, the stat
he utory tribunal before which a contest
We regard TO the election Of governor is
On be heard and determined. Now. could
We have been intended. that the solemn finc
e. ing and determination Of that high tr