Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1911-02-20


of moneys and further "Nor do think that the statute
which precribes the duties of the superintendent of water
works would prevent the clerk of the waterwor from beng
charged by regulation appointment with the safekeepng
transfer disbursement of moneys The principles upon
which the foregoing rulings made equally applicable
the present in which ENLIGHTENMENT of county funds
charged have been made by the defendant county
poyee.
In IT, s. Smith, 124 U. S. 525 much relied upon by
the defendant held (532 that clerk in the office of the
collector of CUSTOMS appointed by the collector and holding his
position at the will of the collector "dscargng only such
duties may be assigned him by that officer neither
within the letter the prvew of the statute and that in the
absence of OF congress makng clerk of the collector
fiscal agent of the and bringing him within the class
of persons charged with the satekeepng any public
the clerk ndictabe for embezzng such money The
also relied upon together with Moore State SO Neb
$751; and State Myers So OHIO 340 both of which cited
by the defendant in the present TERRITORY R'ch0on
SUPRA which held that these conflict with the
ruling that he defendant could be charged by regulation
appointment well by law with the safekeephg transfer
disbursement of Moneys In T. s. Smith, the Indictment
alleging that the defendant charged by act of congress
with the safe1keepng of the public moneys the only question
presented whether there such act The rulings the
Wright and Richardson conclusive against the defend
ants claim of exemption from liability the ground that
statute authorized the magistrate impose upon his second
clerk the duty of collecting fines, authorizing the
pomen of the second clerk charge of such money We
unable sustain the defendants contention that statute
authorized the magistrate appoint second clerk for whose
salary the legislature in Act 1872 S. L. 1909 appropriated
monthly salary of $S5 to paid by the county, the clerk should
L. 1907 incorporating the City and County of Honolulu which
requires that "he Mayor with the approval of the Board of
Supervisors shall appoint all officers Of the City and County
whose election appointment is not otherwise specially pro-
vded for this charter by law Ordinarily fnot other
wise expressly provided by statute appoint and
their clerks and by this done in all the of
the Territory unless the of the second clerk of the district
magistrate of Honolulu because expressly provided for in
the way to be regarded exception There
think to infer that the legislature intended that the
sole exception should be this second clerk and that he should be
al llo 4 that
he performs certain service for the county county matters in
which the magistrate has jurisdiction and for the Territory in
territorial matters within the jurisdiction of the magistrate and
also that he paid by the county, but this of employees
working under committee of the board of supervisors charge
of roads, bridges etc. and yet those employees of the county
not regarded county officers. Coser Trent 10 Haw
, 352. ~tf@@
But the defendant urges that being appointed by the mag
trate OF the district court which territorial and
ncpa court he cannot be charged employee of the
ty under Sec 1861 R. L. reading follows Whoever being
officer employee of the Territory of political
municipal corporation subdivision thereof guilty of
beement of any money note other effects property be-
longing to the Territory such political municipal copor
alton subdivision thereof shall be punished by Imprisonment
at hard labor for not than years. by fine not ex-
ceeng five times the value of the thing property embed
In taking the forfeited bail money by direction Of the mags
trae as alleged in the Indictment son of the said City
and County of Honolulu" he acting for the Territory
but for the county and to that he employed in the
service of the county and chargeabe its employee
spect OF county funds placed his charge for transmitting
te county treasurer Sec 296 H. L. pTescbes the penalty for
embezzenen by any employee of the county of county funds
while Sec 1865 r. L. defines the ofelse follows "f any
person who is inrsed WITH has the possession control
tody keeping of thing of value of another by the
authority direct Indirect of such other without the
and against the will of the other fraduen dis
poses OF the same attempts to dispose of the
same to his and benefit the and benefit of
another than the person entitled thereto he guilty
the embezzlelnent of such thing"
The defendant in taking for and in behalf of the county and
by direction OF the magistrate the forfeited bail which
the property of the county from the time of its forfeiture
was acting as the receiver agent ba employee of the
N in respect of that money and although the county did d
rec authorize this to be done by accepting such money when
paid to its treasurer it indirectly consented the clerk being
inrusted Herewith rather such acceptance would require
evidence the awfuness of the direction of the magistrate that
the clerk should have the custody of the money of the cous
presumed matter of law have been acqiesced
sened to by the county the direction being lawfully given the
consent to the custody follows In the Wright and Richardson
cases SUPRA there ENLIGHTENMENT of territorial money which
had been entrusted to the clerk of waeworks territorial
ocer by the regulation appointment of the superintendent
OF public works without statutory authority and this notwit
standing the fact noticed in Superintendent of Public Works
Rtchdrdson Is law $685. 525, which action the Off
cia bond OF the clerk that here nothing designation