The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-11-21
AUSTIN
IS STILL.
KEPT OUT
Gears Order Had
But Little
Effect.
DENIES POWER OF
THE GOVERNOR
The Second Judge Relies on a
Newspaper Report in His
Decision.

Judge Gear yesterday ordered H. C.
Austin restored to office as auditor, but
the order was not obeyed Austin made
a forcible attempt to regain possession,
by virtue of peremptory writ of man
damus. but an officer barred his way.
In the meantime Gears order was rem
dered null and void by an appeal to the
Supreme Court, and Austin's case will
probably be effectually disposed of by
the Senate before any further court
proceedings can be taken. There was
some talk of contempt proceedings, but
no action had been taken by the attor-
neys or the court yesterday.
Judge Gear rendered his decision a
little before eleven o'clock yesterday
morning and signed the peremptory
writ at once.
He read only a few paragraphs from
the decision in court yesterday morning
and it was not until after the attempt
had been made to regain possession of
the office by Austin that the opinion
was filed. In his decision Judge Gear
held after quoting numerous authori-
ties and the Organic Act relating to
appointments:
This provision is peculiar as it does
not occur in any other law that l have
been able to find. The statement there
in would be the law without its inser-
ton in the section, for it is abundantly
shown by all the authorities that where
an appointment Is made by and with
the advice and consent of the senate,
no removal can be made except by and
with the consent of the Senate.
There are some authorities holding,
however, that in the national govern
ment the President has the power of
removal of officers whose appointment
is made by and with the advice and
consent of the Senate.
''These decisions place the National
Government on different footing from
State or Territorial Governments, 1t
may be that because of the power ex-
ercised by the President of the United
States, Congress thought that a like
power might be exercised by the Gov
ernor. They made the law on this
jurisdiction certain. however, by the in
sertion of this provision giving the right
to remove officers to the Governor only
by and with the advice and consent OF
the Senate"
Referring to Hawaiian laws the deci-
sion says: This statute allowing the
suspension or removal of these officers
by the Governor, regardless of the ad-
vice and consent of the Senate, is ab-
solutely incompatible with and direct
ly contrary to section so of the Organic
Act, which requires the advice and con-
sent of the Senate for their removal
from Office. 1t is clear to my
mind that a careful study of the Or
ganic Act, in connection with the Audit
Act, would show that the Organic Act,
in its provision as to appointment ten
ure and removal of officers therein nam
ed, is exclusive and annuls sections /,
and of the Audit Act, providing for
appointment and removal of the Audi
tor ana Deputy Auditor
The question then arises as to the
power OF the Governor irrespective of
statute to remove or suspend an Of
heer duly appointed who-as we will
ADMIT for the purposes of this discus
slon-cemmitted malfeasance in office.
1t seems to be clear that an officer
can only be removed in accordance
with some provision of law and the
power of removal must be exercised
within the limits fixed In this case
the office of Auditor is. an office created
by the constitution whose term of Of
fee is fixed and there is no Inherent
power in the Governor to remove such
an officer, but his powers are limited
and circumscribed by the law.
THE Territory of Hawaii is in a ne
Continued on page 81