The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-11-06
ASK PEREMPT
MANDAMUS
AUSTIN DEMURS TO THE AN
swER OF GOVERNMENT AND
WANTS OFFICE RIGHT AWAY.

The case Of Austin against Dole was
taken up this morning by Judge Gear,
and began with demurrer by counsel
for Austin, with a request for a per-
emptory writ of mandamus directing
that Austin be placed in charge of the
office of Auditor. Austin was repre-
scented by c. w. Ashford, while Deputy
Attorney General John w. Cathcart
appeared for the Attorney General
Ashford's demurrer to the return
made by the Attorney General stated
many grounds on which he claimed
that there had not been a sufficient an
swer showing cause why Austin was
kept out of his office. II was claimed
that the reply of the government did
not set forth any definite reason why
the suspension had been ordered by the
Governor, or that any charges against
Austin had been made heard and PROV
ed The court was therefore asked to
issue a peremptory writ of mandamus,
in the place of the alternative writ
which brought the matter up for hear
ing
In his argument Ashford claimed
that the Governor had exceeded his
power in attempting to suspend Aus
tin. He read from the statutes the
causes of removal-inCompetence, mis-
| behavior, maladministration malfeas-
ties of the office for more than thirty
days. The Governor is strictly con-
fined to these causes said the attOr-
ney. There must be charges prefer
red, an opportunity given for defense
and a decision by the tribunal or Off
Cial who hears the matter that one or
more of the causes for removal have
been established. The Governor is alb
solutely bound by these provisions. If
he has the power Of suspension of an
official at all, it can only be for those
reasons, and they can only be deter
mined in a definite, specified manner.
| The cause for the suspension must be
| proved to exist.
! IF the Governor acted precipitately
and prematurely we have right to a
! writ of mandamus to restore the office
to the man Illegally suspended, what
| ever may occur after that. 1t may be
that if he Is restored to office the Gov
! ernOr may prefer charges and hear the
! defense, if any be made, and then de-
eide the cause. Then if he should hold
that there was cause for action, under
! this view of the law we could only sub
NIT and await the action of the senate
in the matter. But at present the Gov
ernor has acted altogether beyond his
authority and his action is a nullity.'
Ashford also discussed the question
of whether the office of Auditor of Ha-
/ Waii is a Federal office or a Territorial
office. At one time in his argument he
took the position that it is a Territorial
office, subject to the Territorial laws a,
to appointment and removal, and un.
der this view he claimed that the Gov
ernOr had no power of suspension OF
! removal without the consent of the
Senate. He also quoted authorities tC
show that the power of removal does
not include that of suspension.
! Under the view that the Auditors of;
flee is Federal office, created by {
Federal statute, Ashford also claimed
that the law of the matter did not give
the Governor power to remove or suS
pend an official without the consent o
the Senate, or without preferring speci
fic charges and finding that they haC
been proven. There has been no ac'
ton by and with the consent Of the
Senate, - said the attorney. The
Governor has assumed to suspend tbs
Auditor, and there is no authority fol
his action in law"
Deputy Attorney General Cathcart II
opening his argument claimed that the
suit had been brought against the
wrong party He argued that Governo
Dole. and not the attorney general anC
high sheriff, should have been sued
Whatever has been done has beer
done uIutI the pIutlS VI llt NIONtl llOl
said Cathcart, and he is the prope
defendant in this action"
Austin was also declared to have II,
light ito a hearing in a court of equit!
under the old rule that he who seeks re
lief in a court of equity must come int,
court With clean hands Austin had ad
mtted wrong doing, Cathcart claimed
and did not appear in court with clear
hands. On that ground he had N
right to the relief of a writ of man
damuS.
The deputy attorney general discuss
ed the question of suspension and re
moval at length, quoting a number o
authorities. He contended tina the pow
er to suspend was a natural and prope
one that must be exercised by such al
official as Governor Dole in case
where it was found that an official de
served suspension or removal.