The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-04-22
AMENDMENT
IS OFFERED
Smith Contempt
Case Before
Court.

ttriv set for this morning az 10 O'Clock
by the supreme Court yesterday. Al
that time " George DAVE carries out
the intention he expressed yesterday
he will move To have the writ of ha-
heas corpus quashed on the ground
that ID Is illegal and void on It's face.
An amendment is TO be offered also by
the petitioner bringing up several
points not mentioned In the original
petition.
When the matter was called Up yes
terday morning In its regular order Mr..
Lewis stated that the petitioner was
present. and the advice of the court
was desired as to further procedure.
Attorney General Dole said that he
had not been notified that he was To
appear in the matter. 1T seems TO me
that the proper way would be to have
the case represented in Supreme Court
as II was i'm Circuit Court" said he.
II doubt II could argue this case CAN
didly, and believe IL would be in better
propriety and falrer for the Circuit
Judges 10 have them represented by
private counsel"
George Davis expressed his perfect
willingness to appear in the case, and
there being no objection he was enter
ed as counsel for the respondent Mr..
Lewis asked that the case be presented
in its regular order, as 1t was an inn
portant question, involving the con-
struction Of the statutes, and likely to
be precedent Mr.. Davis Insisted
that IL should be taken UP Immediate
ly, and the Supreme Court finally set
the hearing for this morning at 10
o'clock.
when motions were called up MI.
Andrews presented an amendment to
the petition for n writ of habeas cor
pus.
The amendment which petitioner
asked leave to make gives the follow
ing additional clauses:
That the record of proceedings
shows that said proceedings were ille-
gal and irregular in this, to wit: that
your petitioner was tried by court
which does not exist, to wit the First
Circuit Court sitting In Banco. not by
the judge concerning whom the con-
tempt was alleged to have been com
mitt6d or by the judge issuing the writ.
THAT the order to show cause COM
mancing your petitioner to appear was
signed by one judge of the First Cir
cult Court to wit the Honorable a. S.
Humphreys, and that the trial was not
held before that Judge; that the mitti-
mus herein was signed by another
judge OF the First Circuit Court. TO
wit, the Honorable G. ID. Gear. all Of
which more fully appears from the
pleadings and proceedings filed herein"
MI Davis objected to the considera-
ton of an amendment. and said that
II was improper to amend petition on
habeas corpus. Mr.. Andrews replied
that an amendment could be offered al
any time.
"The writ is void on the face of It,"
retorted Davis angrily. "Iil move To
quash 1t altogether, If you want to
force this amendment"
1t was finally ruled by Chief Justice
F'rear that the proffered amendment
go over until morning. when it will be
taken up prior to the hearing of the
n ~ "a
that the Circuit Court shall be com
posed of two judges" but the argu-
ment was not allowed
HITCH IN KAMALO CASE.
When the Kamalo case came on in
it's order Mr.. Davis stated that the
case was further down on the calen-
dar than it should have been, and he
asked that it be taken up az soon as
possible. Mr. Magoon stated that a
motion would be made to strike the
appeal from the calendar altogether.
on the ground that the transcript OF
evidence had not been fled within the
ten day limit required under the new
rules of the Supreme Court. The court
ruled that the motion must be made in
writing and consequently it was not
taken up yesterday.
ELECTION CONTROVERSY.
Arguments were made also in the
agreed submission between Secretary
Cooper and Auditor Austin as to the
pay of election officials in Hilo, who
were drawing salary of $1,000 per an
mum. The auditor contends that the
TOUR ofhcials who are government en-
pioyes can draw only the $1,000 under
the provisions of the Hawaiian law!
Secretary Cooper appeared In his
own behalf and argued that the provi-
sion quoted by the auditor was simply
part OF Act 3. governing the salary
Vi~t ts.a.
law. The election expenditures are
made by virtue of Act which contains
no such provision. He contended also
mat the organic act established the
pay OF election inspectors, and they
were paid ten dollars per day from the
election appropriation. He argued fur
ther that the school teachers were not
officials OF the government within the
meaning Of the law, as the act applied
only to those appointed by the gov
ernor. 1t was absurd he said to say
that the governor could appoint all the
school teachers
Mr.. Dole In reply said that the law
was plain and specific; no government
employe receiving salary OF 5000
could be paid any more than that
amount from any other government
source. He argued that teachers were
government employees as well as cleo
ton inspectors, deputy sherffs, ETC.,
ana that the law providing for draw
ing but one salary was an old one, and
not reenacted every session as con-
tended by the secretary.
The court took the matter under ad-
visement.
COURT NOTES.
Upon motion of Judge Kaulukou,
seconded by Attorney General Dole. the
supreme Court adjourned at noon yes
terday for the day out OF respect to the
memory Of the late James X. Kaulia
who for long time had been a MEM
Der Of the bar
In the case Of Hackfeld VS.. Hilo Rail-
road Co. Chief Justice Frear is dis
qualified. and Judge Robinson will
nropaply be called to sit as the third
member OF the court
The Smith contempt case Is to be
followed TODAY by the case Of Hona