The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-12-05
JUDGE ESTEE REFUSES TO ENJ0IN THE RAPID :.
TRANSIT COMPANY At REQUEST OF MANAGER PAIN

TINS proceeding that from 1889 to the
present time. Mr.. W. H. Pain has been
and sttll is the sole manager and repre-
sentative of the said plaintiff and petit
toner in this Territory, and as such he
has mad control, direction and manage
/ ment OF all the transactions of said cor
polation in said Honolulu. including "
the employment and discharge of
attorneys and counsellors and the con-
l-tTo! and management of all litigation -
/ The complainant Is now trying TO avoid
the effect Of the decision Of the Supreme
Court OF the Territory in the case refer
red TO- alleging that no statement of
facts was agreed to by it. or by any per-
son authorized to agree upon such state
ment OF facts, and that it had no knowl-
edge of any such submission. notwith-
standing that Mr.. W. H. Pain : its ex-
elusive representative here and has the
| management and control of ali litiga-
ton of the company" and is now act
ing as the manager and representa- tive
of the company in the proceeding in this
Court. Mr.. Pain, being also the only
person testifying TO the effect that COM
plainant is not bound by the aforesaid
decision. and that the said agreement
and statement of facts was without the
authority or knowledge of the complain
ant
1t has been shown in this proceeding
that Mr. Pain was in the Supreme Court
the facts in that case. He himself testi-
fies that he was present; and it is un-
contradicted that he is the only officer or
agent or the corporation in Honolulu
Now if, from 1889 TO the present time,
Mr.. Pain has had the exclusive control
and management of all the business of
the complainant ''including the employ
ment and discharge of attorneys and
counsellors, and the control and manage
ment of all litigation. he must have had
power to control this litiga ton, if what
he swears to in his affidavit is true. And
II he had power to control all of the
litigation of complainant from the year
1889, why did he sit quietly by, without
me king a protest to the Court or TO anv
one else on behalf of the company he
represented, until a final judgment was
entered in that case against his COM
pany, and not even then. If the attor-
neys therein Were not acting within his
he had the right to dis
charge them, and it was his duty to his
to discharge them, and to make
a summary application to the Court for
He admits he was in Court during the
proceedings in the Territorial Supreme
Court, and he testified In the hearing
herein, when examined in relation to the
for submission OF further
facts i'm the Supreme Court matter. that
whether they should do something and
they did, showing his entire familiarity
With the case and the action being taken
Oy the attorneys therein.
There is no principle of practice better
settled in our American law than that
an appearance in Court by an attorney
,or client carries with it the presump-
ion of authority to appear" Bonnifield
IS. Thorp, II Fed, 924)
1T is ALWAYS presumed that an attorney
appearing and acting for party to a
'ause has authority to do so, and to do
Ill other acts necessary or incidental to
he proper conduct OF the case and the |
burden of proof rests on the party deny
ng such authority to sustain his denial
~ a clear preponderance of the evil
lence." chill VS.. Mendenhan, 21 Wall,
:. s., 1853; Osborn VS.. L. S. Bank, 9 |
L. s., 1872
And this Is especially so in relation to |
oreign corporations which can only APP |
,ear by attorney.
THE circumstance that the declaration |
n a suit by a corporation was signed |
md filed by an attorney at law, for the |
plaintiff, is sufficient evidence that the |
'laintif appeared-as a corporation must |
ppear-by attorney" State Bank VS.. |
Bell, Ind, 127.)
1t is clear that managing officers of |
have power to employ at |
orneys and counselIors without delega-
ions of power or formal resolutions. to |
hat effect. And while Mr.. Pain claims |
hat he did not authorize these attorneys, /
Iessrs. Holmes K Stanley or Paul Neu-
mann, Esq. now deceased to act as the |
ttorneyS for the corporation complain
mt in that case, yet the whole of the |
proceedings in the case. including the |
ppearance in Court of the manager of |
he complainant (and its only representa-
I'll. - -arH
ags, and the silence of complainant ever
ince the re1d tion Of the decision. shows
hat ii tacitly admitted to that Court the
of the attorneys TO act in the
natter. And again, while Pau Neu-
mann. Esq. has since deceased, yet
Iessrs. Holmes K Stanley are here, and
f the complainant so desired. we could
ave had their testimony in this pro-
eeding.
The decision of the Supreme Court con-
tru:ng the charters of the parties to
hat action and their respective rights
hereunder, including the right TO lay the
rack on King street on the part OF re-
pendent herein for a distance of more
han seventeen hundred feet thereon, is
hiding upon this Court in the event
here was no Federal question involved.
Western Union Telegraph Co. VS.. Call
Co, 1S1 L. S, SO; Eagan VS..
art. 165 [. S, ISIS; Chicago & Burlington
s. Chicago. 166 L. S, 2i2; Gardner VS..
.onsell, $50 L s. 362.
IT was said, in the case # the Guaran-
re Trust Co vs.. Galveston, 1J7 Fed, $50.
isc:
we follow the Interpretation given 10
&c statutes OF a state as appears by the
ecision OF the Supreme Court of the
tate"
First National Bank VS.. Chehalis Coun-
r. 1G6 L. s., 440; Mobiles VS.. Georgia. 16S
p. S. 39S; Fordice VS.. Dubose, 81 Texas,
No Federal question appears to be in
Owed in the proceedings before this
curt, and no argument was presented
favor of any such question. 1t is true
lie petition of complainant alleges that
lere is a constitutional question involv
!. in that the granting of the franchise
the Rapid Transit and Land Company
as In violation of the prior valid rights
the complainant. but I find further in !
le submission of facts to the Supreme ,
curt that ii was admitted that the said
Honolulu Rapid Transit and Land Com
any is the lawful holder OF franchise
-a-reH m Clinton RafIapTEna and