The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-01-07
RICHARDSON
BONDSMEN FREE
BY Majority Decision-Pine-
apple Lands Taxation-Big
Rental Suit.

/ Justice Ballou is author of a major
| fty decision of the Supreme Court, the
concurring member being Circuit Judge
Lindsay sitting in place of Justice
Wilder, which clears the sureties on
| the bond of Edward Vivian Richard
son, clerk of Honolulu Water Works,
Plaintiff was C. S. Holloway, Superin-
tendent of Public Works, and defend
ants were Edward Vivian Richardson,
| D. Kawananakoa, John F. Colburn,
Cecil Brown and Henry Waterhouse
Trust Co., Ltd, as administrator of
the estate of w. H. Cornwell, deceased.
The syllabus reads:
"Sureties on the official bond of a
clerk in the bureau of water works,
whose duties are nowhere defined by
law, are not liable for his failure to
account for moneys payable by law
to the superintendent of water works.
Judgment was given in the trial
court against the principal and sure
ties and the sureties appealed on ex-
ceptions. The following extracts cover
the salient points of the majority
opinion:
I'm the present instance this court
overruled a demurrer to the indictment
of the clerk for embezzlement on the
ground that he could be guilty if
charged with the safe keeping, trans
fer or disbursement of the money by
regulation or appointment as well as
by law. The language of the bond is
narrower than that of the original stat
ute. 1t is at least doubtful if the
condition of the bond can be construed
as referring to anything but the legal
duties of the clerk, and a doubt is IA
tai to the liability of the sureties,
whose undertaking is to receive a
strict Interpretation and is not to be
extended beyond the fair scope of it's
terms. There is nothing in the desig-
nation of clerk to warrant the infer
ence that he was to act as assistant
to the superintendent of water works
in collecting water rates, nor do the
ordinary definitions of clerk include
one entrusted with the collecting and
handling of funds.
1.-THE exceptions of the sureties are
sustained and the judgment being joint
a new trial is ordered
Attorney General Hemenway for
plaintiff; Robertson, Clemens and Ash
ford for defendants.
Chief Justice Hartwell rendered the
following dissenting opinion:
81 dissent. The duties sof the clerk
of the bureau of water works, for the
faithful performance of which the bond
was given, include, in the absence of
any statute prescribing his duties. as
sisting the superintendent in collecting
water rates as well as in the perform
ance of any other duties imposed by
statute upon the superintendent and
this, / think, must have been con-
by the sureties in making
their contract of suretyship. If this
bond is insufficient to hold the sureties
for the reason that the statute does
not prescribe the clerks duties then
no bond would avail which is intended |
to secure his faithful performance of
his duties as clerk, and the statute. |
Sec. 116 r. L., would be useless which |
provides that the head of a depart |
ment or bureau, in every case where |
bonds for the faithful performance of |
duty are not required by law OF it's
officers or employees, may require ev-
cry such officer or employee to give a |
bond for the faithful performance Of |
his duties"