The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-11-26
POLICEMEN
IN WAITING
Brown and Meyers
We're Not in
Contempt.
SERVICE OF WRIT
WAS NOT MADE
Reinforcemsnts Sent to the Capitol
Building to Prevent Aus.
tins Entrance.

A. NJ Brown, high sheriff, and Henry
c. Meyers escaped punishment in the
contempt cases for refusing to allow
! Auditor Austin entrance into his Office,
because of the failure of proper service
of the writ of mandamus.
Judge Gear, in dismissing the con-
tempt proceedings, held, however, that
an appeal did not stay the execution
of the writ and a similar refusal after
legal service will probably call for pull
ishment from the second judge, unless
he is stayed by writ of prohibition
or other order from the supreme court.
"a writ Of mandamus is different
from an ordinary writ" said Judge
Gear, land courts are divided as to
whether there is an appeal from such
an order; if at all, it is by certi-
orari. The supreme court holds that
contempt is special and extra pro
ceeding, and criminal in its nature.
1.-The statute provides that there can
be no return to a writ of mandamus,
excepting absolute obedience to the
mandates of the court. and while
have great respect for the defendants
and their legal adviser, I would not
hesitate to inflict punishment if requir-
ed to enforce the orders of the court.
after careful consideration of the
questions presented, it is my opinion
that there was no proper service of this
writ A copy of this writ was OBJ
tanned and delivered to the defendant
by Mr.. Ashford, whereas the law pro-
vides for service in a specific way.
The writ must be served in accordance
with law to place the parties in con-
tempt. Mandamus is different from
Injunction, and while refusal to obey
an injunction is contempt, the same
rule applies to mandamus only when
the writ is properly served. The
writ must be served by the high sher-
if or other peace officer and the only
return to such service is implicit obe-
dience, unless the writ is superseded
by some action of the appellate court.
There having been no service, there
can be no contempt in not obeying it.
The citation will be dismissed
c. w. Ashford, attorney for Austin,
removed the original writ of mandam-
us from the court records yesterday
afternoon upon the order of Judge
Gear. No attempt has been made to
serve the order as yet, though probably
Austin will try to recapture his office
the first thing this morning. The po-
lice guard has been redoubled about
the capital building since the order Of
Judge Gear. Yesterday there were five
policemen stationed in the corridors,
evidently waiting for an attempt to en-
ter the building, though they were not
under specific orders. Besides Officer
Elvin, C. H. Brown and McDufie, with
two native policemen, were On guard,
ready to lend their assistance in case
OF danger. An appeal to the supreme
court has been perfected which, it is
claimed, prevents the execution OF
Judge Gears order, despite the ruling
of the latter that the appeal did not
stay a writ of mandamus. In case
there is an attempt to enforce the writ
after the appeal it is probable that the
supreme court will be asked to inter
fere.