Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-08-22
THE BALIFF ACT
TEST CASE
ARGUED IN COURT

Of three separate departments and
here was a question of great public in
convenience. While the court was not
expected to usurp powers not belong.
ing to II. yet 1t would take cognizance
OF existing circumstances. Justice
Field maintained that where great in
convenience would ensue from ma
tural construction of statute, the ,
court should not be bound to Construe |
IL strictly.
Judge Humphreys quoted from tho /
journals to show that members of thu |
Legislature moved to strike out parts |.
of the Bailiff Act because such parts !
carried appropriations. Representative
Robertson thus moved with regard to
Section 3. the one now at bar, while
Representative Dickey similarly at
tackled the title.
/ The bailifs shall be paid" said the
Act. There was nothing inconsistent
therein with the Audit Act.
! Mr.. smith asked How have drafts
been drawn for the payment of bail.
iffs?"
Judge Humphreys sent out for pa
pers in his office in the meantime en-
pressing the hope that all parties
would be bound By the terms of the
cause submitted.
Mr.. Smith quoted the words, order
of the court" and seal OF the court,
asking under what appropriation the
! M had ham Irnwu
Judge Humphreys said the Act went
beyond mere authority, II amounted to
a command to the Auditor to issue the
warrant
Mr. De Bolt asked: out OF what fund
was that to be paid
Judge Humphreys replied it should
have come out of the common fund.
There was no constitutional prohibi-
ton. as he proceeded to show from I
California case. of paying an Rppro-
priation out of the general revenues
when no specific fund was mentioned.
Mr.. Smith renewed the point as to
how the drafts were framed.
Judge Humphreys having procured
the Eapcrs, answered that the drafts
, were against the appropriation for
Z general expenses. He went on to de-
fine what warrant was and then read
the order of court he made to the An
I ditor to pay the salary of Bailitf
, Charles A. X. Hopkins.
Proceeding, he hoped the Act would
not be construed so as to create an
a absurdity such as making provision FOR
, payment and ordering payment, then
: turning roundand refusing payment be-
cause money was not appropriated in
I given amount. II was decided in Cali
, fornia that neither the constitution nor
the laws required that an appropriation
should state from what fund II should
, be paid II was payable out OF the gen,
eral fund Where the words, They
shall receive" were held mandatory In
California, they were not more so than
: the words, They shall be paid" In this
n Act.
1 Where authority was given to do d
particular thing and the mode was
prescribed, all other modes were eX,
a cluded. This principle was opposed e
, the refusal OF the Auditor to pay tn,
a bailiffs except out of the appropriation
y for general expenses.
= Attorney General Replies.
9 Attorney General Dole In opening hi
y reply mentioned the three divisions o
: the system of government, saying al
y were intended to protect life and prop
:, erty and promote the public good
a Whatever crippled one crippled thu
others. All were servants OF the pub
lie. He did not appear to oppose tn
u contention OF Judge Humphreys but h.
, desired that 1t should be sustained |
n in compliance with law. II the ext
gcncy was serious and the method wa
IN lawful the appeal should be granted
N Yet he could not advise the Auditor I
=, comply with the demand of Judg
4 Humphreys, which would make tn
Auditor personally responsible for tn
70 expenditure OF about $4,000, preierrin
I, that the responsibility should rest wit
% the court. What he had to say was nc
=, TO defeat the claim but to give reason
% why the court should carefully cor
slider whether the proposition was Law
= ful. The conference of the Governo
=, Attorney General anu Judges wa
a, unanimous that the court should b
-, called to decide the matter. He ha
~ serious doubts and would simply ca
their lionors attention to the Az
=, without argument The Attorney Ger
:, eral expressed his doubt II the law
30 bearing on the question gave the cou
!, as constituted Jurisdiction.
~ Pausing moment, he was interrup
=. ed by Judge Humphreys, who was prt
=, GccdinG to reply and when asked
-, wait moment said he thought the A
tOrRGy General had concluded.
II am just beginning" said Mr.. Do
and Judge Humphreys subsidized vii
/, an apology.
Mr.. Dole went on to say that tn
n was simply an informal hearing ar
not an appeal or cause pendin
wherein the law authorized one or tv
-. Justices of the Supreme Court to ca
" one or two substitutes from the bar
=, case of absence or disqualification
bv one or two Justices.
.ry He then took up the Bailifr Act al