Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1915-12-11

which may be legally required O
The writ TO compel the perform
ance of public duty may be issues
at the instance of q public relator
There seems to be decided prepon
deranee OF American authority thai
private persons may move for q man
damus to enforce q public duty, mo-
due to the government 40 such, with
out the Intervention of the govern
ment law officer.
in purely public duties, except
those due TO the government as such
the preponderance OF authority is in
favor of the rule that private persons
even though they have no other inter
est than that of any citizen, may In
stitute proceedings to compel the of
ficer to perform his public duties.
"The writ Of mandamus Is, or ought
to be, used upon all occasions where
the law has established no specific
remedy, and where in justice and
good government there ought to be
one. It ought to be interposed for the
benefit Of the people and the advance
ment OF justice.
Position ID. Different. ae..
Governor Pinkham, being an ap,
pointee Of the president and not elect,
ed by the people, is amenable to q
writ Of mandamus, according to the
contention of Judge Stuart In his land
case, says his counsel, c.. C. Biting,
who this morning gave out the follow.
ing statement:
encouragement Stainback quotes
decisions Of the Massachusetts, court
and others," said r Biting, ito show
that the governor is not amenable to
writ of mandamus. We state in
our brief that this Is q question con.
corning which there Is wide divers
ence Of opinion in the courts.
A leading case is the decision by
Chief Justice Cooley of Michigan, who
held sQuarely against, the right Of "a
state court to issue q writ against the
governor. Chief Justice Marshall of
the United States supreme court, in
his statement on the Merbury-Mad
son case. says that as far as purely
ministerial duties are concerned an
executive officer is amenable to. q
writ for the performance OF his duties.
Cooley held that this statement OF
Marshall's was merely dictum OF
Marshall.s and was not followed.
In our brief we refer to several
decisions of state supreme courts
which say that Marshall's statement
issthe law of the land and Is followed
s Incidentally In one case before the
United States supreme: court, General
Benjamin e Butler, then attorney.gen.
eral, admitted that q writ can even
lie against the president, of the Unit
ed States for the performance Of pure
ly ministerial acts. - 81 ~
10 Subject to Congress.
Another proposition we advanced,
which Mr. Stainback says Is not wor-
thy of consideration, is that inasmuch
as Governor Pinkham Is appointed by
the president and Is subject to his re-
moval, his position is different from
that Of governor elected by the win
Of the people. This territory is d.
rectly subject in the adoption and car.
rying out of its laws to the will of
Congress, and Congress has the power
to nullify any territorial law, though
approved by our legislature and sign
ed by the governor.
The governor Of Hawaii has only
delegated power, and though he could
be removed by the president, the pre-.
sident could never remove the govern.
or Of California, for example.
AS consequence we hold that de.
cisions by state appellate courts on
this question do not apply since the
governor here is appointed, not chosen
by The people.
I'VE also cite illustrations showing
where members of the presidents
cabinet, who act for him as execu.
tives, have been held amenable to
writs Of mandamus, as for instance
the cases against James g. Blaine,
Secretary Madison and Secretary Carl
Schurz.
Judge Stuart is fighting to have
the laws of the territory enforced
without the imposition OF undue. i'm
proper and impossible conditions be
Ing attached to the taking up of pub
nc lands. and claims that the governor
rs well as the land commissioner has
neglected the requirements as well as