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

| FOIlOWlnS closely upon the neelS oi
the decision in the Austin case, George
A. Davis. appearing for Henry E. Coop
er in the Boyd matter, attacked the
Imandamus. He claimed that the second
judge exceeded his authority in at
tempting to control the executive acts
OF Governor Dole contending in spite
of the Austin decision, that the Gov
ernor did have the right to suspend
Boyd. Even granting the power of the
Davis insisted that such power was
wholly discretionary, and should not be
exercised in the Boyd case, where the
official kept out of Office was under in
dictment for embezzlement, and it
would work public mischief to have him
reinstated.
A. S. Humphreys, counsel for Boyd,
was not present during the argument,
but his interests were we'll taken care
of by Judge Gear himself, who ably
presented the petitioners case in an
swer to Davis's argument Humphreys
appeared only at the opening and then
| left the court room saying he had no
wish to make an argument.
| Davis then asked that the mandamus
l hn icc< t1,o pf
stood undenied, and neither Boyd nor
his counsel were present in court. Gear
contended, however, that the answer of
Cooper did not deny the appointment of
Boyd to his office, and that consequent
| ly no proof was required of him. Gear
intimated half dozen times during the
argument that he would decide in favor
of Boyd.
P. D. Kellet, Jr., was put on the stand
to prove, i'll addition to the allegations
of embezzlement made by Cooper in his
answer, that three indictments had
been returned against Boyd by the
grand jury.
THE petitioner must make out his
case contended Davis. HE must be
present at the hearing and prove the
allegations in the complaint. If your
honor issues writ of mandanius in
| the Governors Council man who is
charged with the crime 9of embezzle-
ment, and who has been indicted for it.
The statutes give the Governor the
power to suspend an official, and con-
tend that the laws of the Republic are
| still in force, and sections 66 and 6S of
| the Organic Act give the executive full
power. If this power is not here. then
Congress gave US a statute which gives
the courts a power to turn against the
law. If there is no power to suspend
an official charged with embezzIement
then there is no power here to enforce
the law. The Governor is not bound
to call the Senate in extraordinary ses-
sion; between sessions he may act
alone.
I'm Governor Sanford B. Dole is vest
ed almost kingly powers in his exec
utive acts, powers which no court can
control or coerce by writ of mandamus
The Governor is not a party to this ac-
| ton, but the writ of mandamus goes
out to coerce him into placing a man
| into office indicted by a grand jury and
not proved not guilty, and you are ex-
| ceeding your powers in that
IF the Governor had the power OF
suspension, why did he ask Congress to
give him that power in his recommends
tions to the Secretary of the Interior?' p
| questioned Gear.
II suppose he wanted to get express
power, but this is not in evidence in
! this court, and not in the case at all,
replied Davis.
| Even if the power of mandamus does
lie" continued the attorney, the court
is not compelled to exercise it, it is a
matter entirely in your discretion, you
| can issue writ or not; and 1t should
be issued only to prevent denial OF
Justice 1t is certainly not denial OF
Justice to keep man out of office who