The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-09-29
HE QUESTIONS RIGHT
OF GOVERNOR TO
SUSPEND

| y LEM U1thEtt READ AMI l1EN
THE PUBLIC SESSION CAME TO
A CLOsE-HIS ATTORNEYS ARE
observation-disclosures CHARGES.
Herbert Austin, Territorial Auditor.
appeared before Governor Dole this
morning at 10 o'clock, to answer a pre-
ferment of charge against him in his
position as Auditor and to show cause
why his suspension should not go into
effect and continuance.
Governor Dole asked if the Auditor
required him to furnish witnesses and
if his attorneys were ready to proceed.
Attorneys A. G. NJ. Robertson and c.
! w. Ashford appeared for Mr.. Austin,
! Assistant Attorney Generals Cathcart
and Douthitt for the government. h.
$. Boyd and stenographer were the
only others present.
Mr.. Robertson read the following an
swer to the citation
Auditing Department, Territory of Ha-
wall Honolulu, September 29, 1902.
Hon. Sanford b. Dole, Governor of the
Territory of Hawaii, Honolulu, Ha-
wall.
Sir:-Your two communications, Of
the 25th and the 26th instant, respec-
have my attention.
In the first of those, you allege GER
tain charges against me, and conclude
with the announcement that, because Of
those charges, you suspend me from
by office as Auditor of this Territory
pending such reply as l shall see fit
to make to said charges, or such furth-
er investigation as may be had therein.
In the second, and later, of said com
munication you cite me to appear be-
fore you, at a place and hour therein
named, to show cause why the SuSpen-
sion which you have undertaken to eX-
ercise, and which, as above, you have
announced in the first of those COM
munications SHOULD not be continued
in force until my official conduct as
Auditor of the Territory of Hawaii can
be submitted to and acted upon by the
Senate of the Territory of Hawaii"
In response to said citation 1 have
! the honor to point out the following
facts, viz:
l. My tenure of office, and the mode
{of my removal, is and are fixed by the
Act of Congress creating the Territory
of Hawaii; and by Section so of that
Act, which deals with this matter, there
is no authority vested in the Governor
of this Territory to suspend the Audi
tor for any cause; neither is such au-
thOrity expressed elsewhere in said
Act, which, as l respectfully submit,
supercedes all the provisions for sus-
pension of that official, as expressed in
the Audit Act of 1885, under which, ap-
parently, you have assumed to act, in
your attempted suspension of me, as
announced in your communication of
September 25th, above acknowledged.
2. If, by any chance, l have erred in
my construction of the law, as set forth
in the preceding paragraph, you are
, still bound by the terms of the Audit
| Act in respect of any suspension in
this behalf. Being so bound, your
acts will be legal, only as they
conform to the intent of that Act, The
language of that Act is very plain to
the effect that the Auditor can be sus-
pended only for certain faults therein
specified; which obviously implies that
he must be shown to be guilty of some
one or more of such faults before your
. right of suspension can be called into
exercise. Such suspension being by
that Act provided as penalty for such
faults, or any of them, it follows that
the penalty cannot be imposed until
2 the fault is established. 1t should not
l be necessary for me to remind you
\ that a PERSONS, or an officials guilt Is
not established by the fact of the pre-
2 ferment of charges against him. 1t re-
= quires a hearing or trial, which should
= be had only upon due and reasonable
notice to the accused, the adducing OF
e evidence in support of the charges
S with opportunity for the accused to bt
: heard in defence, before his guilt car
= be established in such a sense as tC
D call into play the right of the Govern
!. ment, or of any official thereof, to visit
h upon the accused any penalty what
a ever. You will pardon my assertion IL
{ this place of truths and principles OF
IpxU gNhxF tnrng Il.
Y foregoing, but your departure from
r those principles, in your attempted sus'
e pension of me without hearing or op'
5 portunity for defense must be my eX
4 cuse for recalling your attention t
these landmarks of personal liberty
and official obligation.
3. Your assumed suspension of m'