The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-08-09
RIGGS CAN
HOLD FEES
Certificates Are
Meat for
Him.
FIRE COURTS ACT
..g. : WAS NOT LEGAL
z1fasr srs1s-x5 81 4~gt SfG.e E ss4-s
Gear Affirms Doctrine of Public
Officials Keeping Money
They Collect.

| Judge Gear yesterday decided that
the charge of fees made by the fire COM
mission was Illegal. but denied the APP
plication for mandamus on the ground
| that no certificate is necessary, and
consequently no order can be made for
the issuance of such a paper to Mrs. H.
Luning. The decision leaves the $507S
collected as fees for the certificates
stin to the credit of the commission in
the Bank of Hawaii, and unless there
| is further action to recover the money
probably nothing will be done to re-
turn the fees to the claimants
| It may be decided that the fees shall
be returned to the claimants upon the
return of the certificates, but ii is be-
lieved that many of the latter would
prefer to retain the certificates as an
evidence of debt and pay the fee exact
ed. Under the ruling of Judge Gear,
Clerk Riggs is entitled. to make
charge for making out certificates and
the fee so obtained should go to him
personally. This may result in an ac-
ton for the turning over of the money.
already collected to the clerk, and by
him paid to the claimants. or retained
in payment for the work performed by
him. An appeal was taken yesterday
by Peters, representing Mrs. Luning, to
1.-THE Supreme Court. In the event that
claimants refuse to pay fee for certif-
icates. action to mandamus the auditor
to secure the warrants may follow.
One of the commissioners said last
night that no action would be taken by
the fire commission upon Judge Gears
decision, as 1t did not in any way affect
the certificates. If suit is brought to
the commission. the fees will thereaft-
er be paid on demand
In the decision given by Judge Gear
yesterday, he held that the charge was
not only illegal but intimated that the
act itself was Unconstitutional As
usual the attorney general came in for
a share OF the courts advice in the
Iconduet OF the executive department Of
the government, though to censure the
Iattcrney general Gear was compelled TO
uphold the governor.
! Beginning his decision he inquired in
to the salary of $3.50 per month paid to
the attorney for the fire commission,
land said that Mr.. Dunno, the present
/ Assistant United States Attorney, had
collected the salary for work done by
Mr. Douthitt. He referred also to the
advice of Governor Dole that the court
| borrow the money and wait for the leg
| islature to pay ii back, and said that
| the commission intended to accept this
suggestion until it was found that the
$4,000 was not sufficient, when the fee
basis was decided upon with the advice
of the attorney general
| Referring to the argument of the at
torney general that the Circuit Court
| had no Jurisdiction, he said he would
mot pass upon the question, because 1t
Twas unnecessary; then going on to de-
eide that the legislature could not au-
thorfze a Supreme Court in addition to
the one provided by the Organic ACT
The legislature in the opinion of the
Court had only right to create courts
| of inferior jurisdiction.
The Court further hsld that the iegis-
Ilature could not delegate to any other
body the right to raise revenue. The
Legislature having appropriated SIf,fVo
| the commission had no right to seek TO
Increase it to 500. 400 by levying assess
ments upon the judgments, thus seek
ling to take the right to raise revenue
out of the hands Of the legislature.
| The Court further held that the ad-
vice of the attorney general was grave
Ilv erroneous and that the commission
4 had no right 10 ISSUE Gel AAi4Ca1tCSs 80
| powers ending when the judgment was
rendered and signed. by majority OF
the court.
| ..-rhe certificate of award was not
| provided for In the act and the commas
sion could not legally order the certifi-
Gates made out; anyone who recoVered
| Judgment under the award IS entitled
! TO be paid, and the charge was made
without authority and, the commission
had no right to receive it, /" was the con-
| cIuding opinion of the court.
! Having decided the question before
him. Judge Gear then went into
lengthy defense of the statement made
by him some time ago, that pubic
IofficiaIs are entitled to put into their
Town pockets fees collected during once
hours for work not specifically required
nv law The statement Of the attor-
NOV general that this money belongs to
the Territory seems to me an absurd
/ ity" said the Court. THE law does NOT
read that way, and it seems to be alb
surd that the attorney general should
| make such a contention for q moment.
| Anyone who had read the elementary
nrinciples of law would not make such
| a claim" The Court then held that the
clerk in making out his certificates did
| 80 outside OF his official duties, and was
entitled to charge reasonable Zee, II
anyone wanted the certificates. "The
| writ of mandamus will have to be de-
nied - said Gear Every claimant is
/ entitled to go to the auditor TO collect
his money. but the fact that the act
of the commission in charging fee Is
illegal does not entitle the plaintiff to
the certificate"
COURT NOTES.
Judge Gear refused to allow a con-
ltiruance in the Ferris murder case
Yesterday. the attorney general making
Ian the admissions as to character asked
nv the defendant. and the trial will be
had some time after Thursday.
| An error was made in the report OF