The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-06-23
POINTS FOR
THE COURT

Points for appellant in the appeal
of Herbert c. Austin from the ruling
of Auditor ]. H. Fisher have been fife ]
by Robertson & Wilder of counsel r,r
appellant. The first contention is that
Judge Gears decision in the manda.
mus suit Of Austin against Governor
Dole, having never been appealed, is
conclusive and binding on the Gov.
eminent. The following, with several
authorities by title is quoted from
Hermann on Estoppel:
THE finality and inviolabiity OF
judgments of court of compete mt
jurisdiction, not assailed on erro: or
appeal, rests on an infiexible and con-
sentative principle Of law. The judg-
ment between the same parties, OF
their privies, is conclusive of the mat
ter directly in question. 1t is beyond
question, it is final and absolute, how
ever erroneous, or whatever of injus-
tice it may work; it is a conclusive
determination of the particular cen
troversy. And in this there is no dif-
ference between a verdict and judg-
ment in a court of common law and
decree of court of equity. Both
has found it's way into every system
of Jurisprudence, not only from its OBJ
vious fitness and propriety, but be-
cause, without it, an end could never
be put to litigation"
But aside from the bar Of the forr :
er judgment" counsel go on to say,
"if this court sees fit to go behind
that judgment, we submit that the
shaving Hicc1nSpS that hn annp11a ,,t
was improperly suspended from his
excluded from his office. We contend
that Mr.. Austin continued to be the
Auditor and that his title to the Office
remained unimpaired Notwithstanding
the attempted suspension.
Section so of the Organic Act pro-
vides that the Governor shall nomin-
ate, and, with the consent of the SEN
ate, appoint the Auditor, who shall
hold office for four years unless sooner
removed
laws of Hawaii that are inconsistent
with the provisions Of the Act.
Section s of Act 80 of the Session
Laws of 1898, which provided for the
suspension of the Auditor for certain
SICNittl ttiuSNs, litoiiSlslSlll Will
Section so of the Organic Act ceased
to be in force after the organization
of the Territory.
THE Organic Act allows the remov-
al of the Auditor by the Governor with
the consent of the Senate, but does
not authorize his suspension.
The power to remove does not in
clude the right to suspend.-Gregory
"And even if the right of suspension
remained in existence after the pas
sage of the Organic Act, the Auditor
could only be suspended for some
cause mentioned in the statute after
hearing and an opportunity to de-
fend himself against the charge al
leged.-Mechem Pub. Officers, Sec. 454;
% A. & e. Enc. Law 43S
''In the case at bar the attempt to
suspend preceded any opportunity to
be heard and to defend, and was there
fore an ineffective nullity.
IF the attempted suspension was
imperative, the title to the office re-
manned in Austin until he was finally
removed with the consent of the Sem
ate.
THE right to the salary follows the
llllt W Tie OlllCe irrespective WHO
performs the duties of the office. This
must especially be so when the Off
Ger is by force prevented from per-
forming his duties by governmental
Observation-Disclosures VS.. Damon, s.
Hawaiian 49,"
Territory VS.. Domingos Ferreira was
continued by consent in the Supreme
Court until this morning.
CONTENDING MILLS.
An amended declaration has been
filed in the debt case of Enterprise
Mill Co. VS.. Pacific Mill Co., and Ha-
waiian Engineering and Construction
Co., Percy Pond, Albion F. Clark, VIM.
r. Castle Jr., w. II. G. Armenian,
Emmett May and Archibald A. Young,
garnishees. 1t is set forth that the
enterprise Mill Co, on December IA,
1900, leased to May and Armenian two
pieces of land know as the Enterprise
Mill Co.'S yards on Richards, Queen
and Alakea streets, for eight years and
four months at $4,000 per annum in
advance in monthly instruments of
$500; that on January 16, 1901, May and
Armenian assigned to the Pacific Mill
Co. the lease before mentioned; that
on September 25 1902, the Pacific Mill
Co. as assignee of the said lease was
indebted to the plaintiff in the sum of
5000 for three months rent and s279.15
for taxes, making total sum of ST.
1918; that during all of the time
mentioned the Pacific Mill Co. occu-
pied the premises under the said lease;
that no part of the rent money has
been paid, and that the plaintiff was
compelled to pay the taxes. 1t is pray
ed that the garnishees named may be
summoned to appear and disclose If
they have any of the goods or effects
of the Pacific Mill Co., defendant, in
their possession respectively. and that
judgment be given against the defen- !
dant for the said sum of S1179.15, at !
torney's fees and costs.
PROBATE MATTERS.
Judge De Bolt has approved the ac-
counts of Emma S. Douglas, admins
tratrix of the estate of Catherine E.
deceased ordering her to