Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-11-22
CONTEMPT CASE
THRESHED OUT
Judge Gear Reserves His
Decision Until
Monday.
NO LEGAL SERVICE
The DEFENSE MADE
AUDITOR AUSTIN AND RESPOND.
ENTs IN couRT-cATHcAR
AND ROBERTSON
ARGUE.

contempt OF court alleged to have been
committed by refusing to obey the
mandate of the writ of mandamus to
admit Il. G. Austin to the office and
duties of Auditor OF the Territory.
Deputy Attorney General J. w.
Cathcart appeared for the respondents.
and A. G.. NJ. Robertson for Mr.. Aus.
tin, who was also present. Mr.. Cath.
cart filed affidavits by the respondents
and proceeded with his argument in
their behalf.
The position he took was that 1t was
apparent by the affidavits that the
court should not punish the respond.
ents for contempt. Mandamus pro.
ceedings in this Territory we're govern.
ed by specific statutes, and 1t was evi.
dent that the writ of mandamus In
this case was not served according to
the statute.
Mr.. Cathcart quoted the law, which
says writ of mandamus must be serv.
ed by the High Sheriff, deputy sher.
in or other peace officer, by showing
the respondent the original and deliv.
ering to him certified copy thereof.
The common law required the original
writ to be delivered. but the Hawaiian
law permitted delivery of certified
copy. At the same time the original
writ must be shown. Also II must be
served by one Of certain specified of.
ficers. Service by any other person
Is not legal because In the extraordi-
nary remedy Of mandamus the law
must be followed precisely. II did not
appear that Ashford, who served the
writ on Meyers, was a peace officer or
deputy sheriff. Service by the at.
torney for complainant on the High
Sheriff was equally defective. There
was no demand made by any author
lied person on the respondents to
obey the mandamus. The law should
be strictly followed No punishment
should be inflicted for contempt where
no legal service had been shown.
Judge Gear supposed the case Of
knowledge Of the order of the court by
the respondents without service.
Mr.. Cathcart replied that they were
not bound to do the acts commanded
until legally and properly served with
the writ. If IL were an order To re-
frain from doing certain acts they
would have been obliged by simple
knowledge, but when commanded to
do certain things they were not oblig-
cd to obey the order until served with
specifications of the acts to be done.
did not the court order them to de-
sist from keeping Austin out of the
Officer" Judge Gear asked.
They were ordered to turn over to
him the books and keys" Mr.. Cathcart
answered. How could we make a
return when the writ was never serv-
ed on u.s." he said in answer to a fur.
Their question. To have the writ serv.
ed by anybody at all was against the
policy Of the law and the express
terms of the statute. The court was
asked to punish them for disobeying
the mandate of a writ that was never
served on them.
Around the writ Of mandamus," the
Deputy Attorney General concluded,
ARE placed all those safeguards, and
II any of them are wanting then There
IL no service"
Mr.. Robertson read the endorsed &C.
acknowledgement by Brown of service OF
a certified copy of the writ by Ashford
at 1916 p. m. on the goth inst. The
practice In mandamus here was iden,
teal with that in injunction proceed
ings, which was the service OF copies
While an original process called for
service by an officer anything in the
nature of an interlocutory order such
as this matter, need not be served by
an officer. The crucial point was
whether the respondent had obtained
notice OF the signing of the order. The
statute quoted was one Of 1876, wher
the writ of mandamus was within ex
elusive Jurisdiction of the Supreme
Court. In the law OF 1892, conferrine
the power on Circuit Judges, there
was nothing about service. He sub
mitted in conclusion that there was
no statutory provision requiring ser
vice by an officer and that any service
OF certified copy OF the writ was suf
ficient.
Judge Gear read from the affidavit
OF Meyers that he did not know the ex
istence Of the writ.
That is not true" Mr.. Robertson
laconically observed.
Mr.. Cathcart held II was true, as the
respondents never saw the original
writ. which the law said must be
shown to them. 'h
Mr.. Robertson commented: "You
might as well say that he does not
know Theodore Roosevelt is President
OF the United States because he did
not see him take the oath"
Mr.. Cathcart dictated to the stenog.
rapher an admission relative to the
alleged service on the High Sheriff
but Mr.. Robertson preferred to have
that ohicer take the witness stand and
tell his own story.
After some further proceedings,
Judge Gear reserved judgment until