The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1900-11-16


has 20, yet been laid. assuming for NO
meut that IL is the proper course in this
cas-. Such an information Is q proceeding
10 try the right by which . man holds an
office. /, j. not sufficient that he claims
that be has been elected. or that the ReTs-
papers say -. He must DO some act By
virtue Of that Office before a court can
intervene ~ wit Of quo warranto to put
him ont
Tho Constitution Of The United States
IN ny opinion. deprives the local courts
of jurisdiction in the premises. and makes
the validity 81 the congressional election
q question with which the attorney Sca
e-ai of the territory has nothing to DO.
Article ]. section of the Constitution
declares thar Each house shall be the
judge II the elections. returns and quail
feau0ns % 5ts own members
Neither in England nor in the United
St-ts- are there many Offices Of the legis
lar.re character which can he said 10 be
within the reach q a quo warrsnto.
About the only Offices Of this kind are
members Of the city council. the Iegis-
laturcs 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
be--, and whore a legislative body has
adjudgsd person 10 boz entitled 10 a
saat. q court has no jurisdiction in quo
warranto 20 Dust him."
The 21st Section Of the I'd Article Of
she Constitution imperatively requires
that. The general ASSEMBLY shall deter
mine 10y law before what authority. ami
in what method. the trial % contested
elections shall De conducted In fulfill
ment of the solemn obligation thus i'm
posed, we find upon the statute book, in
the election laws Of the state, jurisdiction
specially conferred upon various tribunals
10 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
authority before which the election Of
sheriffs and the various other county Of
fcers shall be contested and by which
such contests shall be heard and deter
mined The senate Of the state is by the
same laws. invested with full jurisdiction
to hear and determine any contest in re
gard to the election of governor. lieuten-
ant governor. judge Of this court. or Of
the court of common pleas. and other
state officers. This legislation being not
merely permitted. but enjoined by the
Constitution. has. in effect, the same high
sanction rs though 1t had formed part
Of that instrument Jurisdiction being
thus especially conferred upon other tri-
bunals, and the mode of its exercise pre-
scrihcd. il cannot be Inferred that it was
intended 10y the Constitution to be die
fcreutly exercised 10y proceeding in quo
warrauto. rs nj common law or by the
supreme 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 Constitu-
tiOu and the statute. The
peace and order Of the community. as well
rs justice to the individual whose election
Is contested require that the fact of his
election should not be subject to repeated
judicial inquiry TO hold otherwise would
be TO degrade the right of contest in the
statutory mode. from the rank which gave
il place in the Constitution. to a nuga-
tory farce. Nor does the just protection
of rights or interests. either public or
private. require different holding" u
Ohio State Reports, 1913, State of Ohio
vs.. VIM. NARROW.
This principle extends not only to the
national congress and the legislatures of
the states that have like provisions. but
even to inferior legislative bodies in the
states. such as city councils. and SO forth.
In Commonwealth vs.. Leach "A Penn.
state. 1922 which was an application for
QUO warranto to try the title of the re-
lator 10 the office of councilman in the
cts Of Philadelphia. and where the char
ter of the city had provided that COM
mitjce of councilmen should be judges of
the election of members. the court said
1t is well settled principle Of the
common law and of common sense that
where a statutory remedy is given. with
a statutory right. the common law RENE
dies arr withheld. And this principle is
embodied in the Act of DIST of March
1906 which is very familiar in practice.
The mode of trying contested elections
for councilmen for Philadelphia is writ
ten in the Charter Act of 1850. and is the
same as provided for contested elections
OF members OF the senate and the house
Of representatives.
For the foregoing reasons think il is
not proper for me to make the territorial
government party to proceedings in the
nature of QUO warranto 10 test the
validity Of the election of Mr. Robert W.
Wilcox. | do not express any opinion in
regard TO its validity. That. think. is
= matter for the Congress of the United
States alone To determine.
am. very sincerely yours,
+. z. DOLE. Attorney General