The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-09-30
AUSTIN
EVADES
HEARING
Continued from Page j.


sion which you have undertaken to ex-
ercise, and which, as above, you have
announced in the first of those com
munications, should not be continued
in force until my official conduct as
Auditor of the Territory of Hawaii can
be submitted to and acted upon by the
Senate, of the Territory OF Hawaii"
In response to said citation 1 have
the honor to point out the following
facts, viz:
1. My tenure of Office, and the mode
of my removal, is and are fixed by the
Act of Congress creating the Territory
of Hawaii; and by Section so OF that
Act, which deals with this matter, there
is no authority vested in the Governor
of this Territory to suspend the Audi
tor for any cause; neither is such au-
thority expressed elsewhere in said
Act, which, as / respectfully submit,
supersedes all the provisions for sus-
pension of that Official, as expressed in
the Audit Act of 1885, under which, ap-
parently, you have assumed to act, in
your attempted suspension of me, as
announced in your communication of
September 25th above acknowledged.
2. If, by any chance, / have erred in
my construction of the law, as set forth
in the preceding paragraph, you are
still bound by the terms of the Audit
Act, in respect of any suspension in
this behalf. Being so bound, your
acts will be legal only as they
conform to the intent of that Act. The
language of that Act is very plain to
the effect that the Auditor can be sus-
pended only for certain faults therein
specified; which obviously implies that
he must be shown to be guilty of some
one or more of such faults, before your
right of suspension can be called into
exercise. Such suspension being by
that Act provided as a penalty for such
faults, or any of them, it follows that
the penalty cannot be imposed until
the fault is established. 1t should not
be necessary for me to remind you
that a persons, or an officials guilt is
not established by the fact OF the pre-
ferment of charges against him. 1t re-
quires hearing or trial, which should
be had only upon due and reasonable
notice to the accused, the adducing of
evidence in support OF the charges, with
opportunity for the accused to be heard
in defence, before his guilt can be es-
tabliShed in such q. sense as to call into
play the right of the Government, or
of any official thereof, to visit upon the
accused any penalty whatever. You
will pardon my assertion in this place
of truths and principles of law so
elementary and obvious as the fore
going, but your departure from those
principles, in your attempted suspen-
sion of me without hearing or oppor-
tunity for defense must be my excuse
tor recalling your attention to these
landmarks of personal liberty and Off
cial obligation.
g. Your assumed suspension of me
from my office as Auditor was enacted
without your having first appraised me
of the nature of the charges which you
prefer against me; and without your
having cited me to answer, or having
given me any opportunity to answer
the charges upon which you base your
assumed suspension of me from office;
wherefore it must be obvious to you,
(as it certainly is to mel, that you have
acted outside the law, without legal
warrant, and that your action, in so
assuming to suspend me, is a nullity.
4. l am cited to show cause why this
act of yours, above shown to be a null
lily, should not be Continued in force"
1 respectfully submit that a nullity
cannot be continued in force" and
therefore see no occasion for me to
show cause, further than 1 have al
ready done, in this paper.
Appealing to the law under which I
hold my commission as Auditor of this
Territory, having been duly and reg
ularly appointed, confirmed and COM
missioned in the premises, l claim that
my right to the full and free exercise
of my official functions, and of the full
and unrestrained command and custody
of my office, and of the books and rec
gagged in my said Office, is at the pres
ent time as full and complete as before
the receipt by me of either of your
communications herein acknowledged.
But you, Sir, acting without legal war
rant, have seen fit to employ the police
of this city to forcibly exclude me from
my said office and from the due, or any
exercise of the duties thereof Ready,
as l am, and shall be, at all times to
respond to legal instructions, and to
| obey the law, as an officer of the Gov
eminent of this Territory, I invoke at
your hands, an equal respect for that
rule of conduct which applies with
equal force to you and to me. Destitute
of legal authority to remove or suspend
me, you have appealed to illegal vio-
lence; but you are respectfully remind
ed that legal rights, and especially, title
! to official place and authority, are not
determined by violence.
l have the honor to be- sir,
Your obedient servant