The Hawaiian gazette., 1915-12-14
Legal Advisers Of Executive
Record Brief In suit BY
Judge Stuart
FAILED TO COMPLY WITH
The LAW: HAS NO CASE
Government Counsel Says Man
damus Cannot Lie In Present
Action Before Court

"The opening Of public lands for
homestead entry may be affected by
many warning circumstances, z say At.
torney General Stainback and Deputy.
Attorney General Heen in a memoran.
dun of brief on behalf Of respondents
which fled yesterday in the circuit
court in the matter of the application
Of Cirsuit Judge Thomas B. Stuart for
a writ Of inandamus against Governor
Pinkham and Land Commissioner
Ticker.
cit Is within the province Of the re-
spcndents to say whether OF not the
requisite number of qualified persons
have made application for homesteads,
whether or not they are bonafde APP
plicants and whether or not they have
the specific lands applied for or other
suitable lands.
'sft is also within their power to
pass Judgment upon the question as to
whether or not there is demand for
homesteads. Surely this court cannot
be expected to continually supervise
these matters or 60 examine, int, them
whenever they arise. =
Statement Is Govefnof's Answer
This is the Governors answer TO the
charge made by Judge Stuart in his
petition to, the effect that the admins.
tration ignored requests made by the
qualified number of citizens for the
opening of public lands for homestead
ing purposes.
The brief begins with: owe RESI- ect-
fully urge that the Governor cannot
be compelled by inandsmus to perform
any duty even though such duty be
purely ministerial Authorities are
quoted to suhstantiato this contention.
The argument of counsel for peti.
toner that the Governor of the Terri.
tory stands upon different footing
from those of the States wherein it il
held that mandamus does not lie
AGAINST the Governor, we submit Is not
worthy of any consideration. The fun
damental principles of government in
the Tcrritory, ara identieally the, same
Us those of the States referred tos The
method and manner of appointing OF
elcsting a GOVERNOR do not in any way
affect these principles. .s-.,.. &. -.
Duties Are Discretionary a.,b. ~.
Admitting for the purpose of arpu
ment that manJaTnns does lie against
the Governor, we contend that il can
s not issue in the present case for vari
ons reasons, one being that the alleged
duties sought to be enforced here arc
discretionary. More law is quoted e
bear out this view of the legal al
visers of the Governor.
< The respondents claim that there il
an improper ioinder Of action in thi,
Z ease, In that Judge Stuart seeks to oh
tain relief for himself on the one hans
and on the other to obtain relief fo
Z persons not named in the petition.
1--WE do not admit for one moment, >
tho brief goes on to say, tfthat tn,
general duties in regards to the oprn
ing of public lands sought to be en-
( forced in this case are the proper sub
ject of mahdamus Admitting, how
ever, that mandamus would lie 10 com
pei the performance of such duties, WI
submit that the petitioner is not en-
titled TO the enforcement thereof. 4
=, Different Kinds OF Interest ,@
.saln the FIRST place, the petitioner
-, eaTnot, prder any circumstances, show
any peculiar or sueeial interest in him
these general duties, nor show any in
tercst in himself that is common to I'll,
general public IT cann0tgbe said thai
the ennefal public as whole is inter
ested in the opening ny Of public land
for homesteadf purposes On the con
trarv, those who already hold home
steads in one fern or another, are M
longer qualified TO make demand or ap
plication for the opening of public
lands. for homestead pnrposes, an5
hence they cannot be considered 81
having any, present interest in sucl
matters.
''And again il cannot be said tina
the petitioner has any interest commo,
10 any particular class Only thast
who are qualified to make application
or demand for homesteads can be con
sideFed as having some interest eithel
individually or as a class. In this east
the record afIirmatively shows that thu
petitioner is no longer qualified 20 max,
such application or demand. Here
more law is quoted 4
Not Applicable on This Case
1.-THE remedy by mandamus cOntem
plates the necessity Of Indicating thu
precise thing to be done. II Is moi
adapted TO cases calling for continuous
action, varying according to circum
stances. And more law is cited.
"Thei reservations made in the spe
cial homestead agreement referred x
in, the writ are not Illegal" contends
the brief. ~The wording Of Section
S4l of the Revised Laws of 1918, .....
clearly authorizes the making of Sucf
reseryations.' 49,. -. :.'... -,
The brief holds that in 1902 the AT
torney General of the United State
was asked by the Secretary of the In
terror as TO whether or not the Ter
ritory could grant an easement upG,
the public lands Of the Territory.
'tThe attorney general, in length
opinion, ruled that IL was his opinio
that the power conferred ~. -. I
lease, sell or otherwise dispose Of III
public lands includes the authority |
grant an easement upon, over an
across them. This ruling, which "a