The Hawaiian gazette., 1907-02-05
THE LANAI DEAL
DECLARED LEGAL

BOit d 1nterlOCutOry ueCree ONerruliue
the demurrer in the Lanai Injunction
case. Not only that but, going into
the entire merits. the court sustained
the respondents demurrer and dis
missed the bill. The case had been
fought out by George d, Gear for the
petitioner. L. L. McCandless. and At
torney General Z. C. Peters and Dep
uty Attorney General F. w. Mflverton
for the respondent. There were two
respondents at the start, Cover
Carter and Commissioner Pratt. but
early in the fight Judge De Bolt had
dismissed the bill as to the Governor
on the ground that his part in the
matter that Of approval. could not be
exercised before the act of the Com
missioner sought to be restrained had
been performed.
Justice Haftwell writes the leading
opinion, Chief Justice Frear a concur
ring opinion and Justice Wilder dis
senting opinion. In the leading opin-
ion the case is thus set forth:
THE CASE STATED.
This was a bill to obtain an injunc-
ton restraining the, Governor and the
Commissioner of Public Lands from
exchanging for private lands certain
public lands on the Island of Lanai
having an area of 1850 acres of which
all but 1000 acres are held by one
Charles Gay under five leases termin-
ating respectively February 3, 1907. ~
740O acres; November /, 1907, OF 1900
acres; June %, 1908, of 5000 acres; jan
uary 1. 1916, including the lands of Ka-
moku, area 1921 acres, and Poomai,
area 907S acres, and January 2. 1925, Of
5000 acres, the total annual rentals be-
ing $780,"
THE LAW FOUND.
Following is the syllabus of the opin-
ion of the court, showing the law of the
case:
"Injunctions, as a general thing,
ought not to be issued upon statements
of material matters made upon infor-
nation and belief. An averment of the
value and kind of lands being largely
a matter of information and belief Is
sufficient.
whether a bill by citizen and
taxpayer to obtain an injunction to re-
strain public officials from unauthor
ed acts affecting public property exists
in cases where there Is no pecunary
lOSS " the pldlHliils QudtTc.
1.-THE power Of the Commissioner of
Public Lands in the matter of exchang-
ing public for private lands is not
found in Sec. 252, r. L., but in Sec. ZIG,
r. L., and is not confined to lands not
under lease or to parcels of not over
1000 acres.
strain public officials in the exercise
Of discretionary power"
THE OPEN QUESTION.
AS to the point left query in the
syllabus the following extract from the
leading opinion shows that the right
of citizen to interfere through the
courts with official acts is held an open
question only with regard to the cir
cumstances of this case:
"The right of citizen and taxpaye
to obtain an injunction against official
acts involving unauthorized use of
public funds has repeatedly been adju-
dicated in this court" Castle v. Min
lster of Finance, Lucas v. Am, Haw. E.
& C. Co. and Castle v. Secretary of the
Territory are cited) I'm the present
case the bill does not show whether
the loss Of revenue from rent would be
offset by rents from land of equivalent
value or by saving of revenue which
otherwise would be used. In the alb
sence of an averment of loss none can
be inferred. The taxpayer would gain
from the transaction pecuniarily II the
Territory should thereby obtain prop
srty for such public uses as school |
houses, for instance. for which other |
wise legislative appropriations would |
De made requiring increased taxation |
and in such cases the PLAINTIFFS only |
interest would be his desire that the |
public land laws be correctly admins
.ered."
The court says that perhaps the right
n question ought not to be based on
he pecuniary loss, but on the broad |
ground that any citizen may obtain
| judicial inquiry into the validity of
iuch acts and an injunction against
hem IL found to be unauthorized"
But, in view of its sentiment on the
issue raised, the court finds
t unnecessary to decide the question
Il the plaintiffs right to sue In this
ase.'
POINTS ELUCIDATED.
Justice Hartwell sketches the pur-
'oses of the Hawaiian land laws away
Jack to the Civil Code of 1859. Re-
erring to the contention that the pro-
'iso in Sec. 276 of the Revised Laws
AssAAAeeAAAAeAeAeeeeeeAAe
nent.
AT one time in the proceedings the
OF Public Lands. conn
ent that his exercise of the trust re-
'osed in him was in the public inter-
SITS. was prepared to make the ex-
hange and take the chances of any
for contempt which might
o imposed on him. OF course. in that
vent. the Executive had the power to
ardon him out.
Such course. however, would not
ave shown the respect due the Judi
larry which think the Executive Is
Untitled TO ofrer them. In other words.
would not have been following the
olden rule. / have preferred to follow
ne other course and set an example OF
'aiting for the final Judgment.
AT any time during the proceedings
nd even now relief could be had
gainst any possible illegality In the
A Judge who declined 10
Ign the order for an injunction would
OF have deprived the complainant OF
II methods OF relief. for the act of any
officer can be set aside