Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1911-02-20
SUPREME COURT DECISION
IN THE SUPREME COURT OF THE TERRITORY OF
HAWAII.
OCTOBER TERN, 1910.

Argued February TO- 1911. Decided February Is, 1911.
HARrwEr1 CD, PERRY AND De BoLr JJ.
employee clerk of district
Honouundirect of county entrusng him with
money n belongs
county by the second clerk the dis
court appointed the magistrate by him charged
with the duty Of collecting subject to embezzmen by the
employee entrusted with the custody of the
money by the indirect consent of the county.
appointed by the magistrate by
ponmen and may be lawfully charged by
the magistrate with receiving bail moneys
OPINION OF BOLT
The defendant was indicted for embezzng $685. bail money
forfeited the district of Honolulu the property of the
City and County of Honolulu with which he being employees
City and County of Honolulu towi second clerk of the
district magistrate and charged by appointment of the magis
with the duty of collecting and receiving the aforesaid bail
money! entrusted by and authority of the City and
County.
The defendant demurred the Indictment the grounds
substance folows Cd that it does show that the money
the property of the Territory of political NUM-
pa corporation thereof 2 that the City and County OF
Honolulu political municipal corporation subdivision
of the Territory (3) that the defendant is public officer
who by law, regulation appointment by law charged with
the afekepng transfer disbursement of any money be-
longing to the Territory any political municipal corpora
subdivision thereof N that there no law authorizing
imposing the duty upon the second clerk of collecting and
ceng fines and and other money of the City
and County, which pescrbes second clerk of the district
who by law charged with the duty of collecting
cevng money account of the City and County; 60 that
the district magistrate the having authority
charged with the duty of receiving paying such moneys
account of the City and County; CO. that there is law for
the appointment of second clerk charging him with the safe
keeping Of the public money imposing upon him the duty or
authorizing him to receive the same.
The trial reserved for the consideration of this court
the question whether the demurrer shall be sustained.
argument the defendant abandoned the second ground of
his demurrer.
We will first consider the defendants contention that under
Act 1862 L. 1909 the magistrate could impose upon the
second clerk Of his court the duty Of receiving this money Sec
Of the reading follows "A paid for costs in
civil and for fines and costs in criminal which shall
be received collected by any district magistrate in in
which appeal has been taken and perfected the Circuit
Supreme Court and all paid for fines and costs which
shall be received collected by sheriff. deputy sheriff.
police officer upon and mitms, execution other writ issued
by such magistrate including bail moneys forfeited in any dis
rct court shall be paid by the magistrate other officer who
shall have received collected the the treasurer of the
county which such magistrate officer has jurisdiction, and
SHALL be accounted for by such treasurer county reaiza
tom The requires all money from fines received by
the magistrate and officers named to be by them paid the
N but does not in terms require all such to be
paid to them. There is nothing then far this act is
cerned which makes payment the magistrates clerk illegal
unlawful which precude the magistrate from directing
payment the clerk rather than himself personally
which conforms the practice that money payable to the court
for fines, etc., is handed to the clerk.
In Territory Wright 6 IIaw 123 the defendant in
dcted under Secs. Isl and 1853 p L. being in substance the
Secs 1905 and 1867 R. L. the latter section having
been amended include ENLIGHTENMENT of county money He
had been employed in the office of the superintendent of public
from the superintendent the legislature having made
appropriation for salary of chief clerk of market His
tn that his employment not authorized by law and that
law authorized the entrustng him with the public money
sustained 1t held 12S) that the defendant not
the employee of the superintendent but territorial employee
within the class designated in Sec 1873 p L. and that the
did require for the oense of ENLIGHTENMENT of public
funds that "here shall be express statute authorizing his
employment the capacity mentioned" an express statute
authorizing him be entrusted with the money! and further
ODD that the statute "broad enough include and
Of
designated in that section who in fact entrusted with the
custody of public money! also that the authority Of
the Territory for enrusting public money the defendant
while employed chief clerk of the department of public works
may be either direct Indirect These rulings made in
dependenty Of the provision of Sec 20 of the Audit Act of
1898 making the defendant public accountant viz A per-
who by any law, regulation appointment now
shall hereafter be charged with the duty of collecting receiv
ing other moneys account of the Hawaiian Gov
eminent With reference to this statute the said 32)
"There is requirement of statute that the appointment
receive public money shall be explicitly provided for author
lied by statute and "The evidence that the superintendent
placed the defendant in charge of the public money the Of
equivalent appointing him 500 In Territou "