The Hawaiian gazette., 1905-06-06

United states. Champion vs.. Zabriskie,
l0l U. s. Reports, heard in 1879. We
quote the language Of Mr.. Justice
Field at large:
"Of the right Of resident taxpay.
ers to invoke the interposition of n
court of equity to prevent an illegal
disposition of the moneys of the county,
or the illegal creation of debt which
they, in common with other property
holders of the county, may otherwise
be compelled to pay, there is at this
day no serious question. The right has
been recognized by the State courts
in numerous cases, and from the ma.
ture of the powers exercised by mu-
nicipal corporations, the great
dangers of their abuse, and the
necessity of prompt action to prevent
irremediable injuries, it would seem
eminently proper for courts of equity
to Interfere, upon the application of
the taxpayers of n county, to prevent
the contamination Of wrong, when
the officers of those corporations as
surc, in excess of their powers, to ere
ate burdens upon property holders.
The courts may be safely trusted to
prevent tno nhuse of their process in
the Kapcna case U. p. Railroad Com
pany VS.. Hall, 81 U. S. 343, 1875,
where Strong, j., says: "There is n
decided preponderance of American
authority in favor of the doctrine that
private lcisons may move for man
damus to enforce public duty, not
due to the government as such, with
out the Intervention of the govern
ment law officer.' The court declin-
ed, however, to grant the writ, but
solely upon the ground that injunction
rather than mandamus was "preven-
tive remedy
In Larccm VS.. DIN, 100 Mass. 1O2
(1S93), similar question was pre-
sented in a petition by inhabitants,
taxpayers and voters OF the town of
Beverly for a writ of mandamus to
command the secretary of the commons
wealth not to attest or deliver to the
clerk of the town or any other person
copy of the provisions of articles of
city government consented to by vote
of majority of the inhabitants pres
ent and voting at meeting called for
the purpose of deciding whether the
town would become a city. A 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 o
city government. The court, while
denying the injunction on the ground
that cit 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
rights Of property, granted the petit
ton for mandamps. saying: cit 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
met by considering the petition as in
substance a petition for a writ of pro-
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 Cii cult has held that an
early decision of this court, modifying
n rule of the common law, to the ox-
tent of giving to legal representatives
of a decedent right of action for
fatal injury had the approval of the
Organic Act in its 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
& Construction Co., ante,
p. sc in which the court used the fol-
lowing language: !
1.-The right of 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, 5 Haw. 81
(1SS3).' We see no occasion to de-
part from this rule. The argument
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 net,
in our opinion, affect his right to an
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.
the constitutionality of
the act in advance of county organizat
ton avoids unnecessary expense and
if the decision is I'D
verse TO the act, and, if in its favor,
furnishes desirable assurance of legal
to those who shall be elect /
ed to county offices, besides saving
burdensome and expensive litigation
IN respect of matters so adjudicated. !
While equity has not jurisdiction to |
determine political rights, but is con-
lined to questions affecting rights of !
it appears to us that the case
n