The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1907-01-18
INJUNCTION
PROCEEDINGS

The brief in the appeal in the mat
l.. L. McCandless against the Com
missioner of Public Lands was per-
fected at late hour on Monday night
by Deputy Attorney General Milverton
and was served on Judge Gear, coun-
sci for Mr.. McCandless, just before
midnight of the same day, an extern
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. 1t 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-
clusions are based. The bare allega-
ton that the defendant Is proceeding
without authority In law Is insufficient.
a 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
missible 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 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 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
cites numerous authorities and mem
tions other cases that have been de-
cided in accordance with the conten-
lions.
In 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 a whole, or dam
age to himself, special or otherwise"
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 proyi-
sions of section 25i and the proviso OF
section 276 of the Revised Laws to
show that under these and similar cir.
cumstances there is no limit to the
amount of public lands that may be
exchanged.
1T is submitted" Milverton con-
cludes, that not only has the COM
plalnant 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 VIII
be damaged by the proposed transfer.
but that from the allegations of the
bill 1t cannot be gathered that the pro-
posed exchange of Lanai lands viii 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"