The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1912-06-18

we did not consider the point. Not
withstanding what was said in Bishop
VS.. Judd, 4 Haw. 90, 80, in regard to
the possibility of the statute providing
for the submission of eontrover-
sizes without action being so used as
to make the court an Office of consul
tation, we fear that some laxity has
entered into proceedings heretofore
brought under the statute. 1t is clear
the statute contemplates the entry of
an enforceable judgment Or. L. Sec,
l75D and We cannot give our appro-
val to the entry of a judgment that
merely answers certain questions such
as was done in the case of the Rapid
transit Co. VS.. Tram Co., 10 Haw. 1868.
"There are several reasons why the
submission should not be regarded as
having taken the place of bill for
an injunction to prevent the paving of
the portion of the street referred to by
the government. The submission con
tanned no allegation of any threat that
unless the company should do the paw
ing the government would do it at the
company's expense; nor was there an
allegation that the company had been
notified that the municipality was
about to proceed with the work with
the intention of bringing suit against
the company to recover the cost; the
municipal officials were not made par
ties; and it is not likely that an in
junction would have been sought
against the Territory.
''Nor can the submission be regard
ed as proceeding for a writ of man
damus instituted by the Territory In
addition to the fact that the parties APP
pear not to have contemplated the en-
try of judgment, but only that the
court would answer the questions pro
pounded, the submission itself shows
that the railway company assumed the
position of plaintiff in the case. The
concluding clause of the submission is
as follows: Wherefore, plaintiff and
defendants submit the matter for judg-
ment.
One Argument.
can argument was advanced by
counsel for the government to the affect
that no judgment can be entered be-
cause the parties to the submission did
not designate the nature of the iudg-
ment desired. The cases in other juris-
dlctions are in conflict on this point.
See Woodruff V. People, 1913 N. Y. $50;
Williams V. Iredell County, 1872 n. c.
307. The provisions of our statute per
haps are sufficient to authorize the en-
try of judgment without any prayer
therefor by the parties if no obstacle
intervenes. R. l.. Secs. 1850, 1851. A
prayer for Judgment designating the
nature of the judgment desired would
undoubtedly conduee to certainty, but
a ruling upon the necessity of such a
prayer is, in our view, not required in
this case.
"For the reasons above assigned we
hold that this submission cannot be
regarded as an injunction bill or pro.
ceeding in mandamus, and that no en-.
forceable judgment can be entered IN
the case We also hold that because
of the fact that such judgment can.
not be entered the entire proceedings
must be dismissed 1t is so ordered.
I'D. i. Wilmington Castle g. With.
ingtOn on the brief) for the Rapid
Transit Co.;
"a. g. Smith, Deputy Attorney Gen.
eral, for the Territory and Superin,
tendent of Public Works;
"F. w. Milyerton, Deputy City and
County Attorney, filed brief on be
half of the City ana County of Ho'
nolulu."