The Hawaiian gazette., 1904-08-12
THE LOSER
KICKS HARD
Bundle of Errors
to Supreme
Court.

Hawaiian Engineering & Construction
Co, relative to the injunction suit
brought against itself, the Superntend-
ent of Public Works and the Auditor by
John Lucas, wherein that court affirmed
the decree of Judge Robinson making
the injunction perpetual. Castle d
wilmington, attorneys for plaintiff, sign
the motion.
The grounds of the motion are as fol-
lows:
First Manifest errors and mistakes
on the face of said decision, which work
great injustice to this appellant.
Second: Manifest error and mistake
in said opinion as applied to the facts
in the case, which work like injustice
to this appellant.
Third Questions decisive of the case
duly submitted by counsel and overlook
cd by the court, which work like in
justice.
Fourth: Controlling decisions to
which the attention of the court was
rot drawn through the neglect or mad
vertenCe of counsel"
Specifications OF particular matters
under the foregoing heads are given at
length. on the holding of the Supreme
Court that the plaintiff was not debar-
red from relief In equity on the prin-
,ciple that equity will give no relief to
a party who does not come into court
with clean hands, together with the
holding that the plaintiff sued in a rep
resentative capacity las a trustee on
behalf of the public" the moyant says:
1--WE specify that it is manifest error
and mistake to hold that a trustee on
the part of the public is not guilty of
"a dishonest practice or some conduct
evidently contrary to equity and good
conscience who offers to sell out his
duties as a trustee and the interest of
the public if the defendant will induce
another person, who is already acting
as trustee for the public, to abandon
his duties and betray the interest of
the public for private gain of the plain
tiff"
This refers to the portion of the an
swer of defendants which was stricken
out as scandalous, which accused Lucas
of Offering to drop the suit If the Super
intendent of Public Works would in
duce Herbert Kendall to withdraw in
junction proceedings to enjoin the La
hainaluna contract awarded to plain
tiff's firm.
III regard 10 ldCneS, WHICH tlle gu
preme Court held was not maintained
against the plaintiff, the movant sub
mits that it was manifest error and
mistake to hold that the decision of the
court below was conclusive when the
question of laches was not set up in the
answer and was not presented in that
court. Further, it is suggested that
the Texas case cited refers to laches
of trustee in not properly investing
funds and not to laches of a party to
an action, and that the California cases
have no force in this jurisdiction, the
rule as to the conclusiveness of findings
in equity cases being different in the
two jurisdictions"
The appellant submits that it is
manifest error and mistake to declare
that the object of the statutory pro-
vision in question is ito prevent ia
voritism, corruption and extravaganza"
also that the action of the Superin-
tendent of Public Works opens the door
for favoritism and fraud" and then to
declare that the facts in the case do
not warrant the slightest imputation
against the Superintendent of Public
Works" and that he acted as he did
from a desire to save to the Terri |
tory the value of the old piles, if they
had any, and to reduce the cost of the
work in hand"
The motion contends that the Su-
preme Court erred in finding that there !
could be no genuine competition under |
the advertisement and specifications |
Decisions of mainland courts are quot
ed to show that much more variant
bids We're held legal elsewhere. 1t is
contended that the deliverance of the |
court, viz: The character of the work |
and the materials of which it shall be
composed must be decided in advance" |
as a proposition of law, must be modi-
fled by the exception las nearly accurate |
as possible" In a Detroit case it was |
held that the specifications need not |
be definite but could be left indefinite |
where il tended to promote cheapness.
Another point raised is that the Su
preme Court decided, on the finding of
the court below, that Section TO- Act is,
Laws of 1903 extra session, was the law
under which the contract was let, pro-
yiding: Every contract for construct
ing public works, or for furnishing ma
terial therefor, amounting to five hun
dred dollars (s500) or more, shall be
awarded TO the lowest bidder who shall
furnish a sufficient bond, only upon pub
lie advertisement for tenders" This
finding is put down as having been
without any evidence in the court below
as 10 what act the Superintendent of
Public Works was acting under, the APP
acts showing appropriations
not only under Act Is, but Act 10,
(which does not require the contract to
be let 10 the lowest bidder"
As to laches again, the movant says
that the courts finding that the de
Tense Of laohes was not set up In the
answers etc, Is not supported by the
facts In the case, II II oontended that
the court erred In striking out the al
legged scandalous" part nf the answers,
with which the allegations bearing on
laehes were blended as thereby de-
PENDANTS could not present property "a
the court below their defense that unr
der an the circumstances tho court OF
,4ully would not ael,
Matters alleged 30 bsNe been oYsT1