The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-07-08
PRIMO CASE IN
COURT Of
APPEALS
Motion Is Made to
Suspend the
Decree.

The motion of Treasurer Wright b.
suspend the injunction in the Primo
beer case will be argued before the
Court of Appeals at San Francisco ear
ly In this month In the meantime half
dozen saloons operating under the IL
censes declared invalid by Judge Estee
have been closed up ana within few
months there will be none In operation
in the city.
One OF the chief points relied upon by
the defendant in the support of the
motion before the Court of Appeals IL
that the Treasurer had no opportunity
to make a showing, and that the plain
tiffs I'm the case are i'm reality rival
liquor dealers, who wish to drive a COM
petitor out of business.
The points raised in the brief filed in
the Court of Appeals saying why the
motion should b. granted are in sub
stance as follows:
I. The motion should be granted be-
cause the whole proceeding from the
title Of the cause to the entry of the
decree disCloses that the suit is one
against the Territory, over which the
court has no jurisdiction, and that the
real purpose Of the suit is to regulate
by injunction the liquor traffic within
said Territory as between local and
2. The motion should be granted by
this court because the court below had
no power TO enter its decree for want OF
suitable subject matter
3. The motion should be granted be-
cause the case was not tried to de-
termine rights of parties before the
court, but for the purpose Of entering
"A legislative decree.
4 The motion should be granted be
cause the court below had no jurisdic-
ton to adJudge and decree that the
statute in question was null and void;
and, moreover, because IL had no juI'is-
1iction 10 issue an injunction com
handing and enjoining an officer Of the
government, his successors in office and
all other persons acting in aid or as
sistance OF him or them, from doing
or permitting TO be done any act or
thing whatever under the annulled
statute.
o. The motion should be granted be-
cause the act attacked was perfectly
valid when enacted and was sanctioned
and ratified, except possibly as to its
discriminating features. by the very
act Of Congress that is said to have
rendered il void.
9. The motion should be granted be-
cause IL is apparent from the record
that the plaintiffs real cause of com
plant IL that their licenses are cost
ing one thousand dollars each while
those OF their competitors are costing
but two hundred and fifty dollars each.
But under the rule as announced In
Ticrnan VS. Rinker they cannot be
heard to complain because they are
selling liquors other than beer.
Concluding their argument the appel
lants say:
1T is therefore finally submitted that
this court has jurisdiction to hear and
ought TO grant this motion because II
is manifest that the court below had no
jurisdiction to issue the injunction in
the manner and form in which the
same WAS issued, for the reason that
there was no proper party defendant
before that court and that the suit was
virtually one against the Territory of
Hawaii; because there was no proper
subject matter authorizing the court to
issue an injunction under the prnci-
pies and practice OF courts of equity:
because the suit was not tried to de-
termine The rights of parties before the
court but to adjust the liquor traffic of
the Territory between outside and local
competitors not parties to the record:
because the court had no jurisdiction
to enter q decree annulling and repeal
ing statute and restraining a govern
mental official and his successors in Of
or assistance OF him or them, from do
ing or permitting to be done any act
or thing under or by virtue of the stat
ute so attempted to be annulled by the
decree OF the court; and, finally, be-
cause IL is apparent from an inspection
If the record that the plaintiffs OF rec
ord could not complain because H.
censes were issued under the act at
tackled for a smaller license fee than
they were required to pay for their IL
censes and the manufacturers of beer,
who were not parties to the record.
could not complain under the establish
ed rules Of equity which confine the ad-
publications Of the court to parties be-
fore il.
we believe, moreover, that this
court will grant this motion at this
time for the reason that this defend
ant, who Is high Territorial official,
although fully convinced that the court
below had no jurisdiction over him, has
nevertheless, chosen rather to appeal to
this court to make the order now ask
ed for, rather than to proceed upon the
assumption that the decree and injunc-
ton are void for want OF Jurisdiction.
The only regrettable circumstance is
that the court below should have en-
tered far-reaching decree of the char
acter disclosed by the record without
permitting the defendant who is, as
has been pointed out, a high Terrific
rial official of the executive department
of the government to be heard as to
it's form or substance, and that the
court below should have denied the
appellants motion to suspend the OPP
GRAFTON Of the injunction pending the
appealA without giving any reason
therefor.
This court is therefore respectfully
requested TO grant this motion
HATCH Il SILLIMAN.