The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-12-31
SUMMARY OF THE
DEFENDANTS BRIEF

| Judge Hartwen prepared the brief
for the defendants. AS i; contains
seventeen legal cap pages OF typewrit-
! ing, there is only room here for the
leading statements of its points. What
lis omitted consists OF the elaboration
of these statements. together with CO.
pious citations of authorities Begin
ming with the question of the courts
jurisdiction, the brief takes up the
points of the complaint seriatim The
following extracts will show the Sc
quence and the main substance of the
argument presented orally by counsel
defending the Act:
/. Jurisdiction.
No silatory defense is made in this
case for there is none which has merit
and the defendants do not seek delay
in the decision concerning their legal
capacity. On the contrary, they con-
slider that the public interests and also
their own require that their official
right be ascertained at as early a date
as is consistent with the regular judi
cial procedure.
But in order that it may not appear
! to the Court that the defendants have
taken for granted, and without careful
examination, that the Court has juris-
i diction in this matter to decide upon
the validity of the Act under which
the defendants We're elected as Super
visors of the County of Oahu and un-
6aY, which Not fhax al ~
/ visors, have qualified as such by TAX
ing their oaths of office, giving their
! official bonds and accepting their GER
tificates of election as such Supervisors,
and in further conformity with which
| Act they are exercising their official
| functions by fixing bonds for other
| County officers, they present the fol-
lowing authorities:
| The Statute (Sec 1886 C. L.) defines
a writ of quo warranto as IAN order
/ issuing in the name Of the. Territory by
I the Supreme Court in term or by any
Justice thereof in vacation, and direct
ed to a person who claims or usurps
an office in corporation inquiring by
what authority he claims to hold such
Office. This Act being Chapter 80 of
the Session Laws of 1876, does not APP
pear to have been expressly repealed
except by inference in the Judiciary
Act of 1903, by implication, the latter
Act not giving the Supreme Court or
any Justice thereof Jurisdiction to is
sue writs of quo warranto, while the
power is given to Circuit Judges at
Chambers.
i So far however, as the nature of the
writ and it's functions are defined by
the Statute of 1876, the Statute may
properly be regarded as still in full
force
But even at common law the acts
already done by the Supervisors in
their official capacity would, if unau-
thorized by reason of the invalidity of
the County Act, be equivalent to
usurpation or assumption of the office.
| No stronger case than this can be
presented for the exercise of the judi
cial power to determine upon the va
lidity of the County Act In view of
the irreparable injury which would re-
suit from acts done under an unconsti-
tutional Act, it would be better for
all concerned to know, before County
government is in full operation that
the Act is invalid than to wait until
the mischief is done which might and
naturally would follow from acts per-
formed under an unconstitutional stat
ute. In no case is quia timet juris-
diction in equity. or bills of peace or to
remove a cloud upon title invoked
upon broader or clearer grounds, than
those on which the jurisdiction of this
Court rests in the present case.
|
! 2. The Rule of Construction: to sus-
tain the Act if possible.
The County Act, according to this
rule, must be sustained unless clearly
in violation of the Organic Act. Nj
merous cases cited in the Attorney
Generals brief in the case of the Board
of Public Institutions against the Su-
perintendent of Public Works recently
decided in this Court, are referred to
as amply sustaining this rule. This
Court itself in its opinion in that case
approved the rule.
The Court in Presser VS., People, ZIG
U. s. 252, said: 1T is rule Of con-
struction that a statute must be IN
terpreted so as if possible to make
it consistent with the Constitution and
the laws.
'.It ought never to be assumed that
the law-naking department of the
Government intended to usurp or as
sumo power prohibited to it. And such
construction, if the words will adj
nit of it, ought to be put on it's leg
islation as will make it consistent with
the supreme law The foregoing Ian
guage by the Supreme Court of Mis-
sissippi is approved by the U. S. SD
preme Court in Grenada VS.. Brown, 112
U. s. 261.
8. The County Act is valid notwith-
standing each and every objection TO
it's validity mentioned or suggested in
the plaintiffs petition.
The power of the Legislature to make
whatever changes are made by the
County Act in the functions and du-
ties of the Territorial offices prescribed
by the Organic Act is to be found in
the express power given to the Legis-
n 70