The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-08-08
DOLE OUGHT
TO READ LAW
JUDGE GEARS RESPECTS ONCE
MORE PAID TO THE AT
TORNEY GENERAL.
FIRE CLAIMS FEE CHARGE WAS
ILLEGAL.
No Certificate Is Required and the
Mandamus WIT Asked For Is
Therefore Refused.

1T is a contention that anyone who
had read the elementary principles of
law would not make" said Judge Gear
this morning, referring to part of the
argument of Attorney General Dole, in
the matter of the mandamus of j. M.
Riggs, to compel him to deliver a Fire
Claims certificate to Mrs. Luning, with
out charging her a fee. Gear declared
that Attorney General DOles advice to
the Fire Claims Commission had been
wrong and that the Commission had
usurped legislative powers and had no
right to charge fees. He also decided,
however, that the Commission need lot
give out any certificates at all The
ruling leaves the certificates the prop
erty of the clerk, to do with them what
he plea5eS.
Gear recited at length the facts lead
| ing up to the issuance of the certificates
| and the charge for them. Incidentally,
when he came to the matter of employ
ment of government counsel, for which
| the act provided $3.50 a month, he re-
marked that he believed that "a Depu-
! ty Attorney General appeared Cnd drew
! the salary."
This is not the fact, if the court
| please" said Assistant Attorney Cen
| eral Douthitt. Il appeared at times in
| the absence of Mr.. Dunno, who was en-
| ployed in The matter, and was not 9TH
| erwise connected with the Attorney
| Generals Department, and l did not
draw any of the salary"
Gear wanted to know if the salary
had been paid to Dunno for work that
Douthitt had performed, and was told
that Douthitt had appeared few times
when Dunno was away.
Il find that the Commission had a
| with (HOVarnOr DOln' said
the court, land was told that the only
way to get the money needed to carry
on the work was by an appropriation
Later the Attorney General advised the
Commissioners that they might borrow
the money and later get it from the
/ Legislature. There is nothing in the
act giving the Commission any express
power to borrow money. After $4,000
had been borrowed, it was found that
another thousand was needed, and the
Commission decided to charge fees for
| certificates and raise enough to pay
all"
Gear referred to the contention that
the Commission was an Independent
court of final jurisdiction, said that if
such was the case the Legislature had
! gone beyond it's uthority and created
a new Supreme Court. 1t was not nee
essary TO go into this matter, said the
court, in the present case.
Daniel Webster and other authorities
were quoted at length in support of the
proposition that the Legislature holds
the public purse" and Gear said thai
: the Fire Claims Commission had as
sumed to increase the appropriation ol
81 400 which the Legislature made foi
it's expenses, and had made the amount
$22, 400, by raising money by indirect
|
ing legislative powers.
mo certificate of award was prGyid'
ed for in the act" said the judge, "anC
none is necessary. Anyone who has al
award on the record of judgment ia en-
titled to be paid, and if the Auditor re-
fuses to issue warrants, he may be ac
tionable. The making of certificate!
was an easy way to announce judg
ments, but it was not legal.
IF the clerk wanted to make up Ger
) tificates and wanted to charge 70
= them, he had a right to do so, and tn,
contention that because he was in
: public office everything that he did
outside of mis- office hours, must be 70
the government, is absurd. An!
public official may make none!
outside of his office duties. 1t is no
/ necessary to offer authorities agains
Such an absurd proposition as that al
official may not keep what he make
outside of his duties as an official. II i
a contention which one who had reaC
the elementary principles of law coul,
r not make"
0 Judge Gear finally said that the posi-
tion of the Governor had been correc
and that of the Attorney Genera
Y wrong. The charge of fees was Illegal
: put as there was no obligation to Civ
. ou! any certificates at all, he refuse
to issue a writ OF fnandamus.
, AS the matter now stands, the clerk
J J. NJ. Riggs, apparently has a right t
J all of the $4,000 collected for maxim
certificates. Attorney Peters gave no
tice of appeal in behalf Of Mrs. Lunine
The next time you have a want, tr
, the Stars columns. Bargain rates.