The Hawaiian gazette., 1900-11-16


H itmtf ply h. 900 rui ofN Oh. fa.
HiU Ht H iHfs.tHiun W iHr 800
".'.rfH UI fHr ..U'f Hf. U' .HI."H N
.e.r AND possession .f fr. .W.u Nf I.
f.rdbrt nf. .HWUHntIt shown tl tHH
petition .u warrant ih, count Iu r.fmIi.
rnr tH. Information to 700 MED ,rH"
People ~ 800 Ntntoi svlna V U.fnari
ruIillhaH 49, Co., iH.iEl
uHHnrr's rrbtIar ur thr tav ot rlhlir
Offices and objects. Goo which yUu have
called WN attention or Nh authority that
ru Information in tho nature of gu0 war
HUt0 may lc maintained D.. fore the ir.
f.nlBnt takes possofsion coy she office doe
U'arva tSrcilou iJ21 ut ~ indispensable
o. tho jurisdiction IN QUO varranto that
She respondents should ho shown 80 have
been in The actual possession and user M
the office " ls not enough that be- should
clim the office. hui an actual user must
np shown"
O. The constitution OF the United states.
u my opinion. iDprivys tho local courts
uf jurisdiction in the premises and makos
the validity OF the congressional rlrrf.nu
q question with which the Attorney GoU-
cral OF tn. Territory has nothing To- do
Article /, Section Of the Constitution d..
clarcs that: Each house shah bo a..
Judge OF the elections returns and qulli-
ncations of Its own members"
Neither I'm England nor IN the United
states are there many offices of the loEis-
lHfivo character which can hc said TO hp
within the reach OF quo warranto.
About the only offices OF this kind are
members of the city council: the lcgisll-
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 whore legislative body has ad-
judged person to he entitled to a seat.
a court has no jurisdiction in quo war
ranto to GUST him" 10 Amer. and Eng.
Ency. of Law, End edition, page 797: State
V Tomlinson, 20 Kansas, G92. 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
3 tho results in accordance with law. thus
giving the person holding a certificate the
prima facie right to the seat, and com
pelling the other party to begin the CON
test" 10 Amer. and Eng. Ency. of Law
, End edition, page SIS.
1.-THE Dist Section of the Second Article
| of the constitution imperatively requires
that: The general assembly shall de-
termne 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-
4 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
to the election of the different public Of
ficers, and the mode prescribed in which
such contests shall he conducted. The
courts of common pleas in the several
counties are especially designated as 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-
tormined. The senate of the state is, by
the same laws invested with full juris-
diction to hear and determine any con-
test in regard to the election of governor,
MISUNDERSTANDING judge of this court,
or of the court of common pleas and
other state officers. This legislation being
not merely permitted, but enioined by the
constitution, has. in effect. the same high
sanction as though it formed a part of
that instrument. Jurisdiction being thus
specially conferred upon other tribunals,
and the mode of its exercise prescribed,
II cannot be inferred that It was intend
ed by the constitution to he differently
exercised by a proceeding in quo war
'ranto, as at common law. or by the SUI
preme court and district courts under
mere general grant of jurisdiction in quo
warranto. Public offices in this state do
not exist in virtue of the common law.
They are the creatures of the constitution
and the statute. The right to an elective
office, such as that of sheriff, can only
be acquired by an election. pursuant to
the provisions of the statute. And 1t is
a settled rule that where new right,
or the means of acquiring It, is conferred,
and an adequate remedy for its invasion
to, h. 1,n Gtat 1ta n
jured are confined to the statutory re-
dress" Smith V. Lockwood, 10 Barb. 2O9;
Dudley V. Mayhem, 43 Const. Q; Sedgw
on Stat. and Const. Law, "a. THE
state senate is, as we have SAID, the stat
utory tribunal before which a contest in
regard to the election Of governor is to
be heard and determined. Now, could 1t
have been intended, that the solemn find
ing and determination of that high tri-
bunal upon the question of fact tried be-
fore it, should not bind the state as well
as all her citizens? That its judgment
might be ignored, the question of fact be
treated as res integra, and be determined,
perhaps differently, by a district court in
proceeding by quo warranto, in any
corner of the state? We think not. The
peace and order Of the community, as
well as justice to the individual whose
c'"Ction is contested, require that the fact
Of his election should not he subject to
repeated judicial inquiry. To hold other
wise would be to degrade the right of
contest in the statutory mode, from that
rank which gave 1t place in the con-
sttution, to "a nugatory farce. Nor does
the just protection of rights or interests,
either public or private. require a different
holding" Is Ohio State Reports, 133 State
of Ohio " VIM. NARROW.
This principle extends not only to the
national Congress and the legislature of
the states that have like provisions, but
even to inferior legislative bodies in the
states, such as city councils, and so forth.
High, on Extraordinary Legal Remedies,
to which you have called my attention as
an authority that an information in the
nature of quo warranto will lie to test the
validity OF Congressional election, de-
Clares: tSection GiGa) when, under the
constitution of "A state, the power TO de-
tpTmine tho elections returns and uuali-