The Hawaiian gazette., 1905-12-05

Judge Sanford b. Dole yesterday
rendered a decision in the mandamus
suit of United States VS.. Charles II.
Merriam, as Registrar of Conveyances
of the Territory of Hawaii
1t is practically in favor of the Ter
ritory, which defended the case by T..
G. Peters, Attorney General j. j.
Dunno, Assistant U. s. District Attor-
ney, appeared for petitioner. Though
ground is found for the issuance of a
writ to compel respondent to register
judgment of the Federal court, the
court declines to take jurisdiction of
his refusal to register a deed following
the judgment. The reason for this dis.
tinction is that the Federal court does
not issue writs of mandamus upon sub
jects unconnected with, or not ancil-
larry to, proceedings pending in the
court. Mandamus is available as an
original action in the Territorial
courts, on the other hand, to compel an
official to do some duty required of him
by law.
Omitting the captions the syllabus
of Judge Dole's decision is as follows:
Proceedings for the condemnation
waii for the public purposes of the
United States, brought in the U. s. Dis
trict Court of such Territory, shall be
prosecuted in accordance with the stat
utes of such Territory for the condem-
nation of property for public purposes.
"Such statutes requiring judgment
of condemnation in such proceedings 10
be recorded in the office of the Reg
istrar of Conveyances of the Territory
in order that the property condemned
may vest in the plaintiff a refusal by
the Registrar to record such Judgment
is ground for the issuance by the court
of writ of mandamus to compel him
TO do so.
"The refusal of the Registrar of
Conveyances of such Territory to re-
cord a deed executed and delivered by
certain of the defendants in such pro.
ceedings in conformity with the iudg-
ment of condemnation therein, is no
ground for the issuance of writ of
mandamus by such court
THE CASE STATED.
In the opening of the opinion the
substance of the petition is stated.
Under condemnation proceedings in
against j. w. Hawai- and others
whereby certain real estate on the
Island of Oahu was condemned to the
public use of the United States OF
America and the title thereto adjudged
to be in the United States. Thereafter
certain of the defendants, to further
complete the title of the United States,
executed and delivered to the United
States a deed of the property, which
was properly acknowledge and offered
with the certified copy of the Judgment
for record to the Registrar. The Reg
istrar had refused to receive and to re-
cord the instruments. Therefore the
petition prayed for writ of manda,
mus commanding the defendant as Reg
istrar of Conveyances of the Territory
of Hawaii to receive for record anC
record the said instruments or to show
cause to that court why the same hai
not been done.
A plea to the jurisdiction was flet
by defendant, saying the petition
showed the writ to be an original on,
and not necessary or ancillary TO thu
court s exercise of its jurisdiction. II,
prayed that the alternative writ o.
mandamus be dismissed
THE COURTS VIEWS.
Judge Dole cites the statute of emf
nent domain of this Territory, which
provides for final order of condem
nation, ga certified copy of which mus
be filed and recorded in the office o
the Registrar of Conveyances; an,
thereupon the property described shal
vest in the plaintiff. E"
Then he quotes Sec. 716, Reviset
Statutes Of the United States, whicl
says: 1.-THE Supreme Court and tn
circuit and district courts shall hav
power to issue writs of scire facias
They shall also have power to issue al
writs not specifically provided for b
statute which may be necessary 10
The exercise of their respective jurisdic
tions. and agreeable to the usages an
principles OF law" He then proceed
with his opinion thus:
MUST REGISTER JUDGMENT.
"The Territorial statute above quot
ed is. to my mind, conclusive upon tn
question as to the necessity OF regis
tration of a judgment OF condemna
tion under the laws Of eminent domain
as such registration is clearly, fror