Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1915-12-24
STUART'S SUIT
inland MATTER
IS THROWN OUT
CONTINUED from page one)

l. - +.
and lengthy one. The writ and petit
| ton were ordered dismissed, subject
however, TO any amendments which
Judge Stuart may care to make with
in 10 days. Whether any amendments
will be made by the petitioner could
not be ascertained today.
For the time being, at least, Judge
Ashford's decision brings to close
Judge Stuart's endeavor to revive old
land law questions, and those which
particularly relate TO the opening of
homestead lands.
Governor Not Exempt.
Il consider" Judge Ashford said.
that the weight OF cold logic is pal.
the point that the executive OF state
may be coerced by the writ of man.
damus. with respect to the perform
ance of any duty which is purely adj
ministrative and which might as well
have been confided for its execution
to some officer other than the COVER
nor; and that the mere fact that the
performance of such administrative
duty has been confided to the COVER
nor or the chief executive does not ex.
empt him from the coercion OF writ
Of mandamus"
The second ground in the demurrer,
alleging that the writ by Judge Stuart
did not state facts sufficient to consti-
tnte a cause of action or to entitle
Judge Stuart to relief by mandamus.
was sustained In sustaining the third
ground, the court held that the writ
did not show the existence of any OF
fetal duty on the part OF the COVER
nor or the land commissioner to per-
form the acts sought to be enforced
These acts were the opening up OF
certain tracts of homestead lands mp.
on the proper applications being made.
Stuart Showed No Right.
The allegation in the fourth ground
that the writ did not show that Judge
Stuart had any clear or legal right to
have any duties performed by the gov
ernor or the land commissioner, was
sustained. The fifth ground, to the
effect that the alleged duties sought tc
be enforced were discretionary and
not ministerial, and therefore not en-
forceable by mandamus," was sus-
tained as far as 1t related to the en-
forcement OF congressional legislation,
but oyerruled as relating to the issu
ance by the executive officer of pat.
ent. to Judge Stuart, in the terms of
his prayer. as being inapplicable.
Judge Ashford also sustained the
sixth, seventh, eighth and ninth
grounds.
When the seventh ground. to the eff
feet that said writ is uncertain. unin.
telligible, vague and ambiguous" was
sustained, the court remarked:
1T il Sustained, and in capital let.
ters.'
Perhaps the most important
ground sustained was the ninth,
athat the writ fails to show that the
petitioner Judge Stuart) has any spe-
cial or peculiar interest in the alleged
duties sought to be enforced in re-
gard to the surveying and opening up
of agricultural lands for settlement
upon the application of 25 or more
qualified persons" and "in regard to
the surveying and opening of desir-
able agricultural and pastoral lands
for homestead entry and homestead
purposes"
In commenting on the case, Judge
Ashford, at the beginning of his de
cision, said:
Admits Possible Accuracy.
1.-THE relator, Judge Stuart, has set
forth general review. Hcssih'v an
accurate one, of certain comparative
ly recent legislation by Congress with
reference to the disposition of public
lands in this territory. And he has
complained that the. governor and the
commissioner of public lands are, and
have been, habitually ignoring and
|neglecting to enforce, and violating
the terms and spirit of, the congress
sional legislation"
Judge Ashford's remarks in this in
grounds for Judge Stuart's complaint
in seeking for a writ of mandamus.
Commenting further, Judge Ashford
said:
This reaches, however, the main
objection; namely. that the governor
of this territory, being the chief ex.
ecutive officer, is not subject to coer.
cion through the medium of writ of
mandamus, and this is without re
spect to whether the particular duty
sought to be coerced is a technically
administrative duty, or what is some
times termed a political or executive
duty, and which involves political or
executive discretion
Attorney General l. NJ Stainback
and Deputy Attorney General Will
am Heen represented the governor
and the land commissioner in the
case. Judge. Stuart was represented
by Attorneys Lorrin Andrews and c..
c.. Biting.