The Hawaiian gazette., 1904-01-01
SUMMARY OF The
DEFENDANTS BRIEF

Judge Hartwell prepared the brief
for the defendants. AS 1t contains
seventeen legal cap pages of typewrit-
ing, there is only room here for the
leading statements of it's points. What
| is 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:
1. Jurisdiction.
No dilatory 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-
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 UNI
der which Act they claim to be Super
visors, have qualified as such by taxi
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. 1885 c. L. defines
n writ of quo warranto as ian order
issuing in the name of the Territory by
the Supreme Court in term or by any
Justice thereof in vacation, and direct
ed to 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
| Tie DtSslOl LAWS VI loio, uoeS lot ap-
pear to have been expressly repealed
except by inference in the Judiciary
Act of 1908, by implication. the latter
Act not giving the Supreme Court or
any Justice thereof jurisdiction to is
sue writs of quo warrar to- while the
power is given to Circuit Judges at
LChambers.
/ So far, however, as the nature of the
writ and its functions are defined by
the Statute of 1876, the Statute may
properly be regarded as still in fun
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 III Iul operation tnat
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 n cloud upon title invoked
upon broader or clearer grounds, than
those on which the jurisdiction of this
Court rests in the present case.
II
.. 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. Nu-
merous cases cited in the Attorney
Generals brier in the case of the Board
of Public Institutions against the SUI
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, 116
". s. 252, said: at is a rule of con-
terpreted so as II possible to make
it consistent with the Constitution and
the laws. '3
1T ought never to be assumed that
the law-making department of the
Government intended to usurp or as
sumo power prohibited to 1t. And such
II the words will ad-
init of 1t, ought to be put on its Leg !
islation as will make II consistent with |
the supreme law" The foregoing lam
guage by the Supreme Court OF Mis-
sissippi is approved by the u. S. SUI
preme Court in Grenada VS.. Brown, 112 |
TT G ogt