The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-11-20
Gear DECIDES
TN AUSTIN'S
FAVOR
COURT FINDS THAT ACCORDING
TO ORGANIC ACT, GOVERNOR
DOLE HAD NO POWER TO sUs-
PEND AUDITOR.

Judge Gear this morning rendered
decision in the case of Austin against
e. p. Dole, High Sheriff Brown and
Deputy Auditor Meyers, holding that
Herbert G. Austin was not legally re-
moved or suspended from the office of
Auditor and granting the writ asked
for by him, to place him in the posi-
ton of Auditor again. After a state
ment OF the case and quoting the law
Judge Gear refers to the provision of
the Organic Act that removals of Off
cials may be made by and with the
advice and consent of the senate, as
follows:
This provision is peculiar as it does
not occur in any other law that / have
been able to find. The statement there
in would be the law without it's inser-
tion in the section, for it is abundant
ly shown by all the authorities that
where an appointment is made by and
with the advice and consent of the
senate no removal can be made eX-
cept by and with the consent of the
Senate
There are some authorities holding,
however, that in the national govern
ment the President has the power of
removal of officers whose appointment
is made by and with the advice and
consent of the Senate.
These decisions place the National
Government on a different footing
from State or Territorial Governments.
1t may be that because of the power
exercised by the President of the Unit
ed States congress thought that a like
power might be exercised by the Gov
ernor. They made the law on this
jurisdiction certain, however, by the
insertion of this provision giving the
right to remove officers to the Cover
n hHra ha odN
consent of the Senate"
Referring to Hawaiian laws the deci-
sion says: This statute allowing the
suspension or removal of these officers
by the Governor, regardless of the ad-
vice and consent of the Senate, is abb
solutely incompatible with and direct
ly contrary to section so of the Organic
Act, which requires the advice and
consent of the Senate for their remov-
my mind that careful study of the
Organic Act, in connection with the
Audit Act, would show that the Or
ganic Act, in it's provision as to APP
pointment tenure and removal of Off
GERS therein named, is exclusive and
annuls sections 1, 2 and of the Audit
Act, providing for appointment and
removal of the Auditor and Deputy
Auditor.
power of the Governor irrespective of
statute to remove or suspend an Of
ficer duly appointed whO-as we will
admit for the purposes of this discus
sion-committed malfeasance in Of
flee
'It seems to be clear that an officer
can only be removed in accordance
with some provision of law and the
power of removal must be exercised
nit At,
the office of Auditor is an office created
by the constitution whose term of Of
flee is fixed and there is no inherent
power in the Governor to remove such
an officer, but his powers are limited
and circumscribed by the law.
THE Territory of Hawaii is in a pc
culiar situation as regards its officers,
in that there does not seem to be any
law in existence providing for the re-
moval of an officer for malfeasance in
office, and it would seem that even
though an officer, such as the Treasur-
er for instance, admitted that he was
a defaulter, the Governor would not
be empowered to remove him from Of
flee and appoint a successor in his
place.
I'm most states there are provisions
in the constitution for removal from
office on conviction by jury, after an
indictment for malfeasance, nonfeas-
ance or misfeasance in Office"
Gear says that the Governors report
shows that he himself was doubtful of
his authority:
1T would seem by reference to the
dates of the suspension of the Auditor
and the date of the report that at
about the time the Governor suspend
ed Mr.. Austin, he was asking that he
be given the power to do so by Con-
gress through an amendment of the
Organic Act. His report was given
out in Washington less than a month
after he had acted in the case of the
Auditor.
From a review of the authorities I
am of the opinion that the only power
of appointment and removal or sus-
pension of officers is provided for by
Section so of the Organic Act; that un-
der that Act the Governor can remove
the Auditor only by and with the adj
vice and consent of the Senate, and
that the Governor has no power or
right to suspend him. There being no
inherent power in the Governor and no
law in this Territory providing for
forfeiture of Office, the only legal man
ner of removing the Auditor is by and
with the advice and consent of the
Senate A special session of the Sen
ate should have been called before the
Governor acted.
"As Chief Justice Beasley said in 36
n. j. Lib: In consequence of my
high respect for the opinion of his ex
cellency the governor and of that Of
his legal adviser, / approached the re-
| suit at which have arrived with hesl-
tation, and at first with a feeling of
diffidence as to the correctness of my
deductions The proposition presented
for solution was novel and the execu-
tive action was obviously based on mo-
tives of justice and considerations of
utility. A pressing evil seemed to call
for an immediate remedy and the mis-
(Continued on page hve.)