The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-11-21

IS Still.
KEPT OUT
CONTINUED from page II

culiar situation as regards its ofncefs,
in that there does not seem to be any
law in existence providing for the re-
mova1 of an officer for malfeasance IN
office, and it would seem that even
though an officer such as the Treasur-
er for instance, admitted that he was
a defaulter, the Governor would not
be empowered to remove him from Of
flee and appoint a successor in his
place.
I'm most states there are provisions
in the constitution for removal from
Office on conviction by jury. after an !
| Indictment for malfeasance. nonfeas-
| ance or misfeasance in Office
Gear says that the Governors report |
shows that he himself was doubtful of /
his authority:
1T would seem by reference to the
dates of the suspension of the Auditor
and the date of the report that at
about the time the Governor suspend |
! ed Mr.. Austin, he was asking that he
| be given the power to do so by Con-
gress through an amendment of the
Organic Act. His report was given
out in Washington less than montb
after he had acted in the case of the
| Auditor.
From a review of the authorities 1
|
/ of appointment and removal or sus-
pension of officers is provided for by
| Section 80 of the Organic Act; that I'M
/ der that act the Governor can remove
the Auditor only by and with the adj
vice and consent of the Senate and
| that the Governor has no power or
right to suspend him. There being no
| inherent power in the Governor and no
| law in this Territory providing for
/ forfeiture of Office, the only legal man
ner of removing the Auditor is by and
with the advice and consent of the
Senate A special session of the Sen
i ate should have been called before the
/ Governor acted"
/ The court also quotes the Pacific
/ Commercial Advertiser as a legal
authority in his decision giving the fol-
lowing paragraph from the Advertiser
of November 7th:.
i Governor Dole has simply suspended
Auditor Austin and Superintendent
Boyd, acting under the Hawaiian stat
utes, which the attorneys for both sus-
! pended officials claim were rendered
null and void by the passage of the
Organic Act. If the courts sustain the
position of Austin special session IS
almost unavoidable. That there is
|
Governor Dole even in his own mind, is
shown by his recommendation to the
Secretary of Interior that Congress
make a specific provision for the sus-
! pension of an official. The need of such
law is evident, for otherwise it would
be utterly impossible to prevent dis
| honest official from exercising the du-
ties of mis- office, even though criminal
I charges had been preferred"
AUSTIN TRIES TO GET IN.
| Just at the noon hour when all the
officials were leaving the capitol build
ing Auditor Austin attempted to re-
gain possession of his office. Accom-
panied by his attorneys Ashford and
Robertson he entered the capitol build
| ing. Officer Elvin met them at the door
and informed Austin that he could not
enter. The attorneys said they had a
| court order and started up the stairs.
| At the door to the audit Office Elvin
1 again barred the way for Austin, while
| Ashford and Robertson entered. The
| writ was served upon Deputy Auditor
| Meyers commanding:
Now therefore, because of the prem
ises herein set forth, and in pursuance
of the prayer of said complaint and
! petitioner, you, the said Edmund P.
Dole, Arthur M. Brown and Henry G.
Meyers, and each of you, are hereby
/ strictly commanded that, laying aside
all excuses, you, and each of you, do
| forthwith admit him, the said Herbert
| c. Austin, to full and free access to
J and possession, custody and control of,
the rooms and office of said Auditor of
said Territory, situated in the Execu-
4 tive Building, in the city of Honolulu,
and to full and free access to and to
the possession, custody and control of
the books, records and other equipment
of said Office of Auditor of said Terri
tory, situated as aforesaid and to the
full and free performance and discharge
of the duties and functions, and all the
duties and functions of said Office of
Auditor of said Territory.
Hereof fail not, at your peril, wit
ness the Honorable George D. Gear,
Presiding Judge of said Circuit Court,
and the seal Of said Circuit Court, at
Honolulu aforesaid, this Goth day of
November, 1902"
Meyers replied that he could do moth
ing ard Ashford went out to use his in
fluence On the policeman. He started
to read the order to Elvin threatening
at the same time, that he was making
NCAA
tempt. Elvin replied that he had
nothing to do with the orders of the
l court, that he was acting under the
= instructions of the High Sheriff and
received orders only from him. Then
Ashford telephoned to High Sheriff
Brown, saying that his officer refused
to obey the courts writ of mandamus.
Brown promised to come up, imme-
diately.
About this time Deputy Attorney
General Cathcart appeared upon the
scene and served upon Robertson
a notice of appeal to the Supreme
Court, from the order of Judge Gear.
Robertson insisted upon getting an
answer from Meyers as to whether he
intended to obey the courts order, but
the deputy auditor refused to say,
until finally Cathcart came to the res
cue and advised him TO refuse to obey.
In the meantime Ashford had gone to
hunt for the High Sheriff, but instead
an extra policeman came to help guard