The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-09-04

4 " mat the boundaries of SaiC
Municipal Corporation sought to be es
tablished by said Act are inaccurate
indefinite and uncertain.
6. Should the Writ of Mandarin
be issued as prayed for.
The demurrer does not specifically
set up, the defendants say it was no
intended to set up, the plaintiffs in
capacity to bring the suit If the OBJ
lection had been raised he might have
amended by averring an impending un
authorized expenditure of publ,
money, thus bringing his case within
the rule in Castle V. Secretary of the
Territory, 16 Haw. 769, TIA. We are
not inclined to hold that a private
citizen who does not claim that his
property rights are in danger of be-
ing injuriously affected can obtain an
adjudication that a statute is uncon.
| stitutional, since as far as political
questions are concerned he does not
represent the public as in case of un-
authorized expenditures. Our cases
have not gone to that extent, and we
are not disposed to extend their au-
thority. See Territory V. Miguel, Is
Haw. 402, 404, in which it was held
that one whose rights were not affected
by portions of a law regulating sales
of intoxicating liquor claimed by him
to be unconstitutional was not entitled
to be heard upon the question. Under
the circumstances, and especially as
there are other insufficient grounds for
sustaining the demurrer, we do not pass
upon the plaintiffs right.
Another question not raised by the
pleadings but argued by counsel, who,
by consent of court, appeared against
the petition, is whether the Territory
ought to have been made a party in
order that the Attorney General should
represent the interests of the public.
The statute, See. 2104 r. L., prescribes
that the writ Fmay be directed to
public officers to compel them to fulfil
any of the duties attached to their Of
fee or which may be legally required
of them.'' The county attorney, who
appeared for the supervisors, is ga
deputy of the Attorney-General of the
Territory" (sec. 95, County Act), as
well as flegal adviser of the Board of
no reason why the AttorneyGeneral
should not have been heard without the
formality of making the Territory a
party.
1t is further claimed by the counsel
that the petition is premature, since
for ali that appears the defendants
may yet proceed under the County Act.
1t is true that they would be at liberty
to change their purpose, they might be
advised to do so. Mandamus, it is said,
lis never granted in anticipation of an
of duty, but only after the
actual default" Elk parte Cutting, "a
U. S. 20. There is no occasion, how
ever, to rule upon this objection or to
say whether a refusal made in advance
Of the time for performing the alleged |
duty would be a waiver of the objec-
ton.
The principal question in the case,
although not expressly reserved, is 1
whether the act of July 80, 1886, CHI.
s1S, "a Stat. at Large 10, is in this
Ease applicable to Hawaii in declaring
that the legislatures of the Territor-
es of the United States now or here
after to be organized shall not pass
Deal or special laws in any of the fol
owing enumerated cases-that is to
'ay,'' specifying after numerous other
instances, such as granting divorces,
aying out, opening or altering roads or
highways, regulating county or town
hip affairs, practice in courts of JUS
ice, jurisdiction of duties of justices
If the peace, police, magistrates and
providing for management
# common schools, incorporating
titles, towns or villages, or changing
,r amending the charter of any city,
own or village or g granting to any
association or individual
my special or exclusive privilege, i'm
nunity or franchise whatever and
Gin all other cases where a
general law can be made applicable no
pecial law shall be enacted in any of
he Territories of the United States by
he Territorial Legislatures thereof.
Our Organic Act, See. 55, also pro-
rides that "the Legislature shall not
,rant to any corporation, association or
Individual any special or exclusive
privilege, immunity or franchise with
ut the approval of Congress nor shall
grant private charters, but it may by
general act permit persons to asso-
late themselves togetl er as bodies cor
,orate.'' Section 1859, U. s. Rev.
Stats, enacts that Legislative assem-
lies of the several Territories shall not
rrant private charters or special priv
eyes, but they may, by general incor-
,oration acts, permit persons to asso-
late themselves together as bodies cor
,orate'' Congress has declared that
hese words in Sec. 1889 "shall not be
Construed as prohibiting the legislative
assemblies of the several Territories of
he United States from creating towns,
titles or other municipal corporations,
md providing for the government of
he same and comforting upon them the
powers and privileges neces-
AIRY to their local administration by
,ither general or special acts.' Act
Tune s, 1873, ch. 16S, 90 Stat. at Large
OF.
The provision above cited from Sec.
IS. Organic Act, refers to corporations
,ther than county, town and city
which the act, Sec. Sc,
expressly authorized the Legislature to
.reate. The authority for creating such
is not limited by requir-
ng that they shall not be created by
L. I.