The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-06-05
COUNTY ACT DECISION
IN: ITS FULL TEXT

, In Larcom vs. DIN, 100 Mass. 1O2
| 1888, a similar question was pre-
scented in a petition by inhabitants,
, taxpayers and voters of the town OF
Beverly for a writ of mandamus to
command the secretary of the common
wealth not to attest or deliver to the
clerk of the town or any other person
a copy of the provisions of articles OF
! city government consented to by vote
of a majority of the inhabitants pres
ent and voting at meeting called for
, the purpose of deciding whether the
town would become a city. second
petition was also presented by inhab-
itants praying that the votes at the
meeting be declared null and void and
that the secretary be perpetually en-
Joined from attesting or delivering to
the clerk of the town or any other per-
son a copy of the proposed articles .
city government. The court, while
denying the injunction on the ground
that - 1t is not within the general
powers of a court of equity to super
wise the conduct of public officers in
the performance of their official du-
ties, or to prohibit such officers from
acting or to compel them to act in
matters which concern political and
personal rights as distinguished from
rights of property, granted the petit
ton for mandamus. saying: lit is
suggested in the brief of the petition
ers that courts in some Jurisdictions
have held that mandamus cannot be
used as preventive remedy; but this
objection is not taken by the respond
ents, and, if it affects anything more
than the form of the order to be is
sued by the court, it may perhaps be
nj Nv ha roatItiOp
substance a petition for writ of pro-
hibition.''
State decisions cited for and against
the exercise of jurisdiction such as is
claimed by the plaintiff are interesting
and of value to the student of law,
but, as above stated, the question has
been decided by this court in favor of
the exercise.
The u. S. Circuit Court of Appeals
for the Ninth Circuit has held that an
early decision of this court, modifying
rule of the common law, to the ex-
tent of giving to legal representatives
of decedent right of action for
fatal injury had the approval of the
Organic Act in it's provision for con-
tinuance in force of laws of Hawaii.
Schooner Robert Levers, ia Fed $40.
The Kapena case was expressly affirm
ed in Lucas VS.. American Hawaiian
Engineering & Construction Co., ante,
p. Sc lin which the court used the fol-
lowing language:
''The right of a taxpayer to bring
suit to restrain a public officer from
doing an illegal act has been settled
in this jurisdiction since the case of
Castle ct al vs. Kapena, Haw. 81
GSS3).' We see no occasion to de-
ar% r,,la h. ont
that single taxpayer may not repre-
sent the wishes Of the majority and
that question of public interest ought
not to be adjudicated at his sole in
stance, with no opportunity for ex-
preston of opposing views, does not,
in our opinion, affect his right to an
adjudication. Any person, citizen or
not, accused of an offense, may raise
the question of the constitutionality
of the law under which he is tried and
no one but himself and the prosecu-
ton is entitled to be heard upon it.
Adjudicating the constitutionality of
the act in advance of county organiZa-
tion avoids unnecessary expense and
complication if the decision is adj
verse to the act, and, if in its favor,
furnishes desirable assurance of legal
protection to those who shall be elect
ed TO county OfnceS, besides saving
burdensome and expensive litigation
in respect Of matters so adjudicated.
While equiv has not jurisdiction to
determine political rights, but is con-
fined to questions affecting rights of
property, it appears to us that the case
presented by the plaintiff in his ca
pacity as taxpayer comes within
equitable jurisdiction for protection of
property rights against acts of execu-
tive officers under unconstitutional
statutes.
Tt is contended by the defendant
that an injunction to restrain illegal
of money, if issued at all,
must be directed not against the see
rotary, but the treasurer Or auditor.
This contention appears to us to be
well grounded and might necessitate
of the submission If cause
We're shown for holding the County
Act to be invalid.
LEGISLATIVE POWER.
The validity of the act affects this