The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-01-16
INJUNCTION
PROCEEDINGS
Attorney Generals Department
Rushing Matters TO a
Conclusion.

The brief in the appeal in the mat
ter of the Lanai injunction secured by
L. L. McCandless against the Com
missioner of Public Lands was per-
fected at a late hour on Monday night
by Deputy Attorney General Milverton
and was served on Judge Gear, coun-
sci for Mr.. McCandless, just before
porized bailiff appearing at Kaimuki
with the papers and getting the attor-
ney out of bed to receive them The
haste Of the Attorney Generals depart
ment in the matter is explained by the
fact that the Lanai deal will admit of
no delay.
The brief goes over much the same
grounds as the original demurrer 1t
recites the fact that the Injunction
| bill does not deal with matters per-
sonally known by the plaintiff, but to
matters of hearsay, which form is not
properly admissible. It objects to the
issuing of the injunction on the bare
statement of conclusions of law in the
BILL the allegations of conclusions be-
ing unsupported by statement of the
probative facts upon which the con-
illusions are based. The bare allega-
ton that the defendant is proceeding
without authority in law is insufficient,
recitation of the facts legally show
ing that an act or acts are unlawful
being necessary. The allegation that
the defendant, Pratt, is acting Illegal
ly in disposing of the lands in question
is a mere legal conclusion and not adj
MISSILE as such.
The brief further states that Nc
Candless is not shown to have suffered
injury or damage through the propos-
ed exchange of land and is not there
fore entitled to an injunction.
Where there is no showing" says
the brief, that the public funds are be-
ing wasted or misapplied or wrongful
ly dissipated, the courts uniformly hold
that injunction will not lie at the in
stance of a taxpayer to restrain the
actions of public officials. no matter
how wrongful, fraudulent or illegal
such actions may be, because the dam
age, if any, which is suffered by a tax
payer under such circumstances. is |
precisely the same damage that is suf-
fered by every other resident within
the jurisdiction.''
In support of his contentious in this
regard, the Deputy Attorney General
cites numerous authorities and men,
tions other cases that have been de-
cided in accordance with the conten-
lions.
I'm this case," he says, mot only
has the complainant not alleged any
special damage different in kind from
that suffered by the general public, but
he has failed wholly to allege damage
to the community as Whole, or dam
age to himself, special OF otherwise y
Regarding the benefit of the ex-
change to the Territory the brief de-
clares that the lands to be secured are
of greater immediate value than the
island of Lanai and recites the provi-
sions of section 254 and the proviso Of
section 276 of the Revised Laws to
show that under these and similar cir
cumstances there is limit to the
amount of public lands that may be
exchanged.
ut is submitted Milverton con-
cludes, that not only has the COM
plainant L. L. McCandless not shown
that he has any interest sufficient to
entitle him to bring this proceeding,
or that either he or the Territory Will
be damaged by the proposed transfer.
but that from the allegations of me
bill it cannot be gathered that the pro-
posed exchange of Lanai lands will be
made in violation of law. The decree
of the lower court should be reversed
with instructions to the Circuit Judge
to sustain the demurrer
& Asg AAs2g Ass ASes sssss sss ~ s.;s
concluded yesterday morning and the
side of the libelees will be now pre-
sented, commencing this morning at
c:clock Yesterday the evidence OF
President Kennedy of the Inter-Island
steam Naviga ton Company and of the
captain of the Chiusa Maru was taken.
The Japanese captain was called by the
ibelants to prove the identity of the
Chiusa Maru with the s. S. Teucer,
hat having formerly been the name of
he libeled vessel.
EVERETT ON TRIAL TODAY.
Joe Everett who is under Indictment
or having broken into the Fashion
aloon and burglarized it to the extent
eeoocA ~
,ors, will be tried this morning before
fudge Robinson. His alleged crime
Constitutes burglary in the first de-
rec.
COURT NOTES.
A demurrer in the case of Frank E. (
lark versus the Honolulu Rapid Tran
it Company was filed yesterday by the
ttorneys for the defendants, styling
he complaint issued as ambiguous, un-
Ineligible and uncertain.
The plaintiffs bill of costs in the mat i.
er of F. S. Kay against F. B. Within u
vas put on file in the Circuit Court
yesterday. 1t totals s193.90, of which
1871 80 represents witness fees.
A joinder in demurrer in the divorce a
roceedings of Dali Fook Tai against C;
.au Kwai San was yesterday present. r
q by the attorneys for the plaintiff. n
he motion has been set for presenta- lie
ion before Judge Lindsay tomorrow.
The damage suit of Odo against the Ii
,ahu Railway and Land Company. for b
5000 for the death of son of the \
la intiff through the alleged careless