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KEOLANUI CAN APPOINT
SUBJECT TO APPROVAL.
Judge C. F. Parsons Gives Decision on Two Test
Cases Sets Aside Mandamus Proceedings Against
Auditor Maguire Appointment of Patrolman Knell
Invalid Without Board's Approval.
On last Tuesday, Judge Parsons
filed with Clerk Gurncy, his de
cision upon mandamus proceedings
to compel County Auditor Maguire
to issue n warrant to Norman K.
Lyman, for .services as clerk to the
Sheriff. In effect, the decision de
nies the right of the Bo-ml of Su
pervisors to appoint members of the
police force. The decision is as
Norman K. I.vinau, Petitioner, 1
Auditor of County of Hawaii. J
The Hoard of Supervisors of the
County of Hawaii at a regular
MtnuliMfr rtf lltnl Krwltf Imlfl 111 1-Tiln 1
,. .. , . 4. c , , ., i
Hawaii, on or about the first day I
r T , . !..
OI July i I9O51 piSSCll .1 IOU1UMUII ilJ
pointing the Petitioner to the posi
tion of clerk of the Sheriff of Hawaii.
Claiming authority under this
.... , , ., .
solution Lyman, who prior to that
. , , ., . . e ot. .ff
time had been the clerk of Sheriff
. , . A, . . . r
Searle, remained 111 the clerks ot -
, . .. .if t..i .
fice during the month of July,
, . , - 1 1
keeping regular office hours during
that time and transacting certain
routine business of the
Sheriff Keolanui, who went into
office about the first day of July,
.1.i.irv tt.rt nitlifn littin f T I'mnn'c
.. , , e , . " 1
alleged employment refused to re-,
. .... , , ,
fa , ' , , '. ',. '
to the Board of Supervisors the .
name of Brickwood Lyman as his
choice for the position, which nom
ination the Board of Supervisors
refused to confirm.
On or about the eleventh day of
August, 1905, the Petitioner pre
sented to Chas Maguire, as Audi
ditor of the County of Hawaii, a
written demand for $75.00 alleged
to be due the Petitioner as his sal
ary for the mouth of July as clerk
to the Sheriff of Hawaii, W. A.
Fetter, Deputy Sheriff South Hilo,
having certified to the faithful per
formance of Lyman's services; and
the demand, before presentation to
the Auditor, having been been pre
sented to the clerk, approved by
the Board of Supervisors, counter-
,, T , ,!,,,. ,, .
signed by John T. Moir, Chairman
. ... . . . .
01 said isoaru, aim atiesieu uy oam 1
K. Pua, Clerk of the County of 1
Hawaii. Upon such presentation
the petitioner demanded that the
Auditor issue to him a warrant for
$75.00 upon the Treasurer of the
County of Hawaii in accordance
with his claim. This demand the
Auditor refused. Whereupon Peti
tioner brought mandamus proceed
ings to compel the issuance of such
a warrant by the Auditor.
Petitioner contends that power of
appointment of a Clerk to Sheriff
of Hawaii is conferred upon the
Board of Supervisors by Sub-division
2 of Section G2 of Act 39 of
the session Laws of 1905, which
provides that such Supervisors
shall have power "to appoint such
subordinate officers as they "'
deem necessary for the public
service," and claims that under'
this power he was duly appointed
to said position.
Kesponcieiu denies me rig.n OI
the Supervisors to make such ap
pointment and claims that it is his
right to refuse to recognie their
attempted appointment of Peti
tioner. Section noa of the County Act
provides: "Any County Officer
may, with the approval of the Board
of Supervisors, employ such clerks
and other assistants as may be ne
cessary to aid him in the perform
ance of the duties of his office, and
may, without such approval, re
move the same."
'1 his section clearly conters up- fnms auy clnim lo be jUegn, it is
on the Sheriff the right lo appoint I Qt only ,lis righl lnU ,)is duty ,0
his own clerk subject only to the rcjecl it IIc is :,, a certai,i sense
approval by the Board of Supervis- n truslci!. (Norman vs. Ken
ors, and this right is in no way nf- i,ckv Iljjarii 0r Managers, 18 L. It.
fectedbythe right of the Supur-j,t 5's6) audit is h!s duty to pro.
visors "to appoint such subordi- met' the treasury not only against
natc officers as they may deem ne-' fraud and dishonesty but against
cesiry for the public .service."
The latter clause confers upon the
Supervisors power to make appoint
ments only in those instances where
the right to make appointments, or
election, is not specifically conferr
ed upon others. Section 13 p:o
vides for the election of deputy .sher
iffs. Section 1 10 provides for the
appointment (subject to the ap
proval of the Board of Supervisors)
of a deputy to each of the following
officers, namely: the Clerk, Audi
tor, Treasurer nud County Attor
ney. To sustain Petitioner's con
tention, in effect, would be to hold
that the County Act has conferred
upon the supervisors the right to
nulify the provision; of Section no
, ' . '
and Section 1 10a.
Whether or not it is within the
power of the Supervisors to appro-
rc-M'"" """' w '" '"' aT""
services rendered any county officer
.... , ,
without the consent or approval of
such officer need not here be consi-
. ....... ., ,
dered. In this instance they do
not pretend that the appropriation
r.nn n..rti. tr. -... tri dnnnin
was made for such purpose. An
IIIDI'IUIMI lit till. tUUWUkll HllJJ
Hunnnhnn rC tl.rk tM.r.M nf c CMfMi'U
mat tnc ciaim was ior saiaty as
Clerk to the Sho iff.
Petitioner claims that so far as
the Auditor is concerned the action
P c . . .
of the Board of Supervisors in al-
lowing Petitioner's claim is conclu
. , ., . ...
sive, and tnc Auditor is vested
with no discretionary powers in the
premises; that it is his duty, acting
ministerially, to issue a warrant to
Petitioner for the payment of such
claim without questioning the au
thority of the Board of Supervisors
to order its payment. I cannot
adopt this view. In my opinion
the Auditor connot be compelled to
issue a warrant upon an illegal
claim, even when the same has
been approved by the Board of Su
pervisors. Subdivision 7 of Chapter 4 of the
County Act provides: "All con
tracts, authorisations, allowances,
payments and liabilities entered
itiln crrnntorl tnnrln or lllfMirrnfl ill
. . .... 1 n 1 : 1
violation of this Act shall be void
, , , 1 r
and shall never be a basis for a
claim against the County."
Section 75 of the County Act
provides: "The Auditor shall
issue warrants on the County Treas
urer in favor of persons entitled
thereto in payment of claims and
demands chargeable against the
County which have been legally
examined, allowed and ordered
paid by the Board of Supervisors."
Prom this provision the converse
is fairly inferable, viz.: that if such
iclaims have ot bceil legally al-
lowed, etc., the Auditor shall not
issue warrants for their payment;
and I cannot hold that the Legisla
ture intended the Supervisors to be
the final judges as between the
Audilor aml themselves, as to the
legality or illesality of their action
iM tnaUiiig sucli allowance.
TIu, titic "Auditor" implies the
right ,Q au(lit( that h (ndoptlllB the
i jailguaBe 0f Hie Supreme Court of
WvomillB in Donzelman vs. Grant,
21 Pac. 693) the right "to hear
and upon a hearing to adjust, or to
allow, or to reject, or otherwise de
cide according to the nature of the
"He (the auditoi) is charged
" by the very nature of his
office with the duty of auditing or
examining accounts, comparing
charges with vouchers and there
after of allowing or rejecting
charges and stating balances."
Donelman vs. Grant, supra.
If upon such examination he
1111.0 trihunh, into,
illegality as well. The good fa
of the Supervisors is not questioned;
but their good fnith, in this in
stance, cannot avail the Petitioner.
Where the Auditor undertakes
to reject vouchers which have re
ceived the approval of the Board of
Supervisors he does so at his peril;
but when he pleads as his excuse
for such rejection the illegality of
the claim, the Court will not refuse
to hear him. If the claim is found
to be illegal the Court will not
assist in its enforcement.
In 1801 the City Council of
Seattle passed, over the Mayor's
veto, an ordinance providing for
the issuance of bonds in excess of
the amount of indebtedness which
the city was authorized to incur.
The mayor refus-d to sign the
bonds. In denying a writ of man
damus against him the Court said:
"While it is true that the regu
larity of the proceedings of a City
Council should not be subject to
being questioned in this way, and
the due execution of the city's
business thus hampered and inter
rupted, where the power to do the
thing attempted is possessed, yet
the argument that the mayor should
be compelled to sign these bonds
regardless of their validity, it seems
to us, is without sanction in law or
justice. If these instruments would
be void if issued, it would be a bad
state of affairs indeed if the mayor
must be compelled to sign them,
and thus put the last finishing touch
to their fair appearance, enabling
them to be thrown upon the market
and find their way into the hands
of innocent purchasers, resulting in
possible loss and tedious litigation,
and thus to the defamation of the
fair name and financial standing of
the city. Surely the Courts, in the
execution of the law, are not so im
potent, and compelled to be so blind
to justice, as to sanction or enforce
the perpetration of such an injus
tice. If the proceedings had were
void, it is manifest for the good of
all concerned they should be so
stamped at the earliest possible
moment, and it is well these steps
were taken in advance to determine
their value before harm could result
to any one." Chalk vs. White,
Mayor, 29 Pac. 978.
I find that the Auditor was jus
tified in rejecting the claim of Peti
tioner. Peremptory writ denied.
Let judgment issue in conformity
with this decision.
(Sgd) Ciiaki.ks F. Paksons,
Hilo, Hawaii, October io, 1905.
KNKLL IS OUSTED.
On Saturday, Judge Parsons
handed down his decision on the
second case. This was upon a
writ of quo warranto sued out by
Chairman John T. Moir, on behalf
of the Board of Supervisors, against
Harry A. Knell, a mounted patrol
man, appointed by Sheriff Keola
nui, which questioned his appoint
ment and authority to act as a police
officer. The second decision is in
line with Judge Parson's opinion
given in the first case. Sheriff
Keolanui has the power of appoint
ment, subject however to the appro
val of tin Board of Supervisors.
Without such approval, such police
officers are acting without authori
ty. The full text of the decision is
as follows: .
Territory of Hawaii 1
ex rcl. John T. Moir )
Hurry A. Knell. J
Relator alleges, inter alia, that
on or about the 1st day of July,
1905, William M. Keolanui, she: iff
of the County of Hawaii, under
claim of authority, commissioned
and appointed respondent police
officer for South Hilo; Hint the res
pondent, claiming under said ap
pointment to be lawfully entitled to
hold said office is, nud for two
months last past has been perform
ing its duties and claiming its emo
luments; that Keolanui was with
out lawful authority to mnke said
appointment, that the said appoint
ment is void; and that respondent
is unlawfully occupying and per
forming the functions of said office.
Respondent, in his answer, ad-
mils that he is holding the posi- for the removal, tu.der certain cir
tion of Police officer under the she- cunistauces, by the Board of Super-
riff's appointment but alleges said
appointment, under the County Act
and particularly under Section 67
hawaii, tuiutoav, octobkr
thereof, to be valid; and avers that
he is lawfully performing the duties
of his office.
Section 67 of the County Act,
under which respondent claims for
the sheriff the right of appointment
of police officers provides as lollows:
"Hulijtct to the special proUslous of
tliii Act, the County ShrrlfTof each Coun
ty shall linc nnd exercise nil the jtoweri,
privileges nud nuthorily, nnd he ruiuirid
to pet form nil the duties in his jurisdic
tion, the same hcitiK the County in nnd
for which he shnll liac been elected, ns
nrc now by lnw provided to be had, exer
cised nnd performed by the High Sheriff
of the Territory or by the Sheriffs of the
various Islands respectively; nnd shnll
have such other powers nud duties ns nre
by this Act conferred nnd which may be
provided by nny law hereafter enacted
by the Legislative nuthorily; provided,
however, that nothing in this Act con
tained shall be construed to vest in the
Sheriffs of the various Counties respec
tively, the care, custody or control of nny
Territorial jail, house of correction or
penitentiary, or the care nud custody of
prisoners confined therein."
Ill order to ascertain the "powers,
priviliges and authority" provided
by law "to be had, exercised and
performed by the High Sheriff of
the Territory or by the sheriffs of
the various Islands respectively" at
the time of the enactment of the
County Law, reference must be
made to Chapter to6 of the Revised
Laws of Hawaii.
Secttion 1556 of that chapter
"HIGH SIIURIPP. There shnll ben
High Sheriff of the Territory, hereafter
in this chapter named the High Sheriff.
He shall be the Chief of Police for the
Territory, nndshnll be responsible to the
Attorney General. He shnll lmvc the
supervision and control of the Sheriffs
nnd subordinate officers of the police."
Section 1558. "SHKRII'I'S. There
shall ben she-riff for the island of Hawaii,
a sheriff for the islands of Mnui, Molo
kai, I.nuni nud Knhoolawc, nud n sheriff
for the islands of Knuni nud Niihnuvvho
shall lmvc the exercise, the care, super
vision nnd control of the police within
their respective jurisdictions, subject,
however, to the superior control of the
High SlisrifTnnd Attorney General."
Section 1564. "Deputies sheriff, police
officers, appointment, rcmov.il, pay: The
high sheriff for nnd within the island of
O1I111, subject to the npprovnl of the
attorney general, nnd tin several sheriffs
for nud within their respective jurisdic
tions, subject to the npprov.it of the high
sheriff, may appoint such deputies sheriff
and other police officers ns occasion may
require, nud may dismiss them in their
discretion; nud may in like manner ap
portion the duties, nud adjust the com
pensation of such officers, except ns
otherwise provided by lnw J provided,
however, that the number of regular
police officers shall not exceed, for the
island of O.iliu. one hundred, for the
islands of Maui, Molok.ii, I.nuai and
Kahoolawc, eighty; for the island of
Hawaii, one hundred, for the islands of
Knuni and Niihiu, forty, nnd further
provided, that nothing in this section
contained shall be construed to prevent
the nppoinlmentof nny number of special
police officers to serve without pi,
except that for service during nny emer
gency such special officers may be rriiil,
iu the discretion of the officer by whom
they were appointed to serve during such
emergency, if such pnjment be approved
by the attorney general."
Section 1559 provides for the ap
pointment and removal of sheriffs
by the High Sheriff with the ap
proval of the Attorney General:
Section 1560 provides that the
sheriffs shall give bonds, in the sum
therein named, to the Attorney
Section 1563 enumerates the du
ties of the High Sheriff and of the
Section 1565 authorizes the High
Sheriff and the several sheriffs to
exact indemnity bonds from their
It now becomes material to en
quire how far the foregoing sections
of the Revised Laws have become
modified by the "special provisions"
of the County Act referred to in
section 67, above quoted:
Section 13 of the County Act
contains a "special provision," for
the election of deputy sheriffs, thus
depriving the sheriff the power of
Sections 20 to 27 inclusive, con
tain provisions regarding the bonds
of County officers, deputy sheriffs
included, which differ materially
from the chapter 106 of the Revis
Section 60, as amended by Act
51, contains n special provision"
visors of nny elected officer of the
County (except supervisors.)
Section 61 , as amended by Act
54, gives to the Board of Super
visors power lo fill vacancies in of
fice (except in the board) caused
by death, resignation or removal.
Section 6$ (quoted hereafter nl
length) recites the duties of the
sheriff, differing from the recital
contained iu section 1562 of the
Section noa provides as follows:
"Any county officer may, wilh the
npprovnl of the Hoard of Supervisors,
employ such clerks nnd olhcr nssistnuls
ns may be necessary to nid him in the
performance o' the duties of his office,
nny inny, without such npproval, remove
Section 112 p-ovides:
"All lnws or pirts of lnw, so far only
ns the same may be inconsistent with
nny provision of this Act, arc hereby re
Respondent claims that the right
of appointment of police officers
conferred upon the sheriff of the
island, (subject to the approval of
the high sheriff) by Section 1564 t.f
the revised laws, now vests iu the
sheriff of the county by virtue of
Section 67 of the county act, and
that such right is unaffected by any
of the "special provisions" above
Section noa, above quoted, em
powers the sheriff, subject to the
approval of the Board of Super
visors, to "employ such clerks and
other assistants as may be neces
sary to aid him iu the performance
of the duties of his office."
The "duties of his office" arc
prescribed by statute.
"Scctian 68. He shall:
"1. Preserve the public peace;
"3, Arrest nnd take before the nearest
qualified magistrate (or cxituiuntiou nil
persons who attempt to commit, or who
lmvc committed n public offense, mid
shnll prosecute the same under the direc
tion of the County Attorney;
"3. Prevent nnd suppress nffrays,
breaches of pence, riots and insurrections:
"4. Attend nil Circuit Courts held
within the County nud obey nil lawful I
onlers and directions of all courts
within the Couut! ,
"5. In nil emergency requiring the
same, command the nid of as many male 1
inhabitants of the County ns he may
think necessary in the execution of his
"6. Tnke charge of nud keep the 1
County j ill, nud the prisoners therein.
"7. Kndorsc iipou nil processes nud
notices the j car, month, day, hour nud
minute of reception, nud issue therefor
to the person delivering the same on
payment of fees, n certificate showing
the name of the parties, title and paper
nud time when received,
"8. Serve nil processes and notices iu
the manner prescribed by law ,
"9. Certify, under his hand, upon
every process or notice, the nnnuer and
time of service, or if he fails to make
service, inc reason ui 111s imiiirc aim re
turn the same without delay."
Manifestly it was not tlic inten
tion of the legislature that all of
theje duties, should be performed
by the Sheriff personally. It is ap-
NOAH W. CRAY
The hotel is n beautiful stone-front, steel framed, up to-dnlc fire-proof
building. Corridors, toilets and bathrooms nre nil wainscoted with Tennes
All rooms are elegiutly furnished nud excellently well ventilated.
Gentle brceies waft through corridors nud sleeping-rooms day nnd night.
This hostelry, of nlready world-wide fame, opened n little over two
jcars ago, has been favored by patrons from all parts, who unite iu the
opinion that its service, its silver and cutlery, its linen, its china, its crystal,
etc., are equal to those of the best hotels au where.
WATHR A ttircc-milliou-galloii-a-da artesian well of one thousiud
feet iu depth supplies nbuudnuce of delightfully soft water of high chemical
purity. Kvcry room in the building his hot and cold water. All the table
water, ns well as that supplied to the rooms for drinking purposes, is distilled.
IIOTHI PARM lde excellencj of the table is much enhanced by this
hostelry possessing its own farm, where, from a fine herd of Jersey cows, an
abundant supply of milk nnd cream is obtained, a fine lot of poultry pro
duces eggs and nice broilers; a lot of choice runts produce the delicate squab
required; suckling pig and voting pork are produce d b) n herd ot fine Berk
shire hogs. Presh fruit and vigetablesof all kinds are dull) supplied from
this farm, frogs nnd mullet from the ponds nre also supplied daily.
ROUP GARD15N On the fifth floor, iu centre section of building,
there is n ROOP GARDICN' of one-third of nil acre in area, furnished with
beautiful .shrubs, scuts nud tables are interspersed nud refreshments nre
served by nctive nnd obliging waiters all day and throughout the evenings.
Awnings nre provided for shelter nnd band concerts nre frequently given.
At one end of this garden there is 11 lnrge dance piviliou, while at the other
end there is n similar room fitted with nil the comforts for a louuging-rooin,
where billiards nnd other games nre enjoed bj ladies nnd gentlemen.
Prom the Roof Garden the whole of the city and surrounding country,
with the sea 011 one hand and the verdure-clad mountains on the other, pre
sent 11 puiorain.i of tropical beaut which for grandeur ciunot be surp.isbed.
I.ong-distance telephone iu ever room.
Cablo Address" Young's," Honolulu
Amorican and Europoan Plan
SPECIAL RATES TO ISLAND PEOPLE
parent thnl one man cannot at once
preserve the public peace, make nr
rests, prosecute offenders in the dis
trict courts, prevent and supress
affrays, breaches of peace, riols and
insurrections, proccsss and attend
all citcuit courts within the County.
To aid him in the performance of
these duties the appointment of "as
sistants" is necessary and obviously
the pi oper assistants to nid in the
ptiformanceof such duties, arc po
Section noa, in my opinion,
empowers the sheriff to appoint
police officers, but under that sec
tion the approval of the Board of
Supervisors is required to make
such appointment valid. The ap
proval of the Board of Supcrvisois
docs not appear to have been given
to respondent's appointment.
I therefore find that respondent
is occupying the position, exercis
ing the functions nud claiming the
emoluments of a police officer for
the District of South Hilo without
authority of law.
Let judgment of ouster, with
costs, issue against the respondent,
iu conformity with this decision.
(Signed) C. F. Parsons,
Hilo, Hawaii, Oct. 13, 1905.
Subscribe for the Tribunk
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I'OR KATKS, I1I.ANKS, KTC.
E. E. RICHARDS
AGKNT INTKR-ISI.AND TIJIJ
GRAPH CO., HILO.
ut" j. '-jZSsi