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DAILY BULLETIN! HOffOLItt U, H. I., MABCI1 21. ISM).
Mma uttwcuan'n a ifci'waHsxiw
Pledged to nctthcr Stct nor Party,
Bnt cttablifhed for the btnttil of alt.
FRIDAY, MAR. 21, 181)0.
The Controversy between Cabi
net and Auditor-General,
1RTEGBITY OF THE AUDITOR'S ACT
Tell ot Judge
In the Supreme Court of the Ha
waiian Islands. Before Mr.
Justice McCully.-In Clinmbcrs.
In the matter of the application
of His Excellency L. A. Thurston,
Minister of the Interior, versus Geo.
.1. Ross, the Aiulitor-licncral, for a
writ of mandamus.
The Auditor-General refined to
approve sundry bills for expenses
connected with the employment
of prisoners upon a public work,
viz: the Volcano Road, for which
:he Legislature had appropriated a
specific sum. these bills not having
been drawn against said sum, which
had been already expended, but
against the fund for the '.Support
Held, that it was a matter within
the iudirment and discretion of the
Auditor to determine in any ease
whether a bill was drawn upon a
fund which was applicable to it.
Held, that the Court would only
t:.uinine the action of the Auditor to
hscci tain if he had abused his dis
cretion, or if his judgment . was
founded on an illegal basi.
The writ was denied.
The ease was heard on the peti
tion and answer without the intro
duction of testimony. They aic
here set foith in full.
"The petition shows unto thN
"That the complainant herein, L.
A. Thurston, is the Minister of the
Interior for the Hawaiian Kingdom.
That George .7. Ross is the duly
appointed and commissioned Auditor
General of the Kingdom and as such
is charged with the auditing and
approving tlio accounts and dis
bursements of the Hawaiian Govern
ment. That Section 210 of the Civil
Code reads as follows: -All prison
ers sentenced to imprisonment at
hard labor shall be constantly em
ployed for the public benefit on the
public works, or otherwise, as the
Marshal, with the 'approval of the
Minister ot the Intel ior, may think
best,' and Section H of an Act en
titled, 'An Act to amend the exist
ing laws relating to the road tax,'
dated August L'ilnl, 1802, reads as
'The Minister of the Interior is
hereby empotvcied in his discretion,
to detail for labor on any public
road, upon application to that pur
pose from any Road Supervisor, as
many prisoners as ne
necesiarv for such work
l said pris
oners to be under the care of their
usual oversecis and subject to the
Road Supervisor only as fur as re
gards the mode ot their employ
ment.' That there aie now about 300
prisoners sentenced to imprison
ment at hard labor, confined in the
various jails of the kingdom.
That in accordance with the man
date of said first nboe mentioned
statute and in perMiancc with the
discretion vested in him by the said
above recited act of 1802, tlte said
Minister has dining the twenty
ihree month- of the biennial poiiod
now last past, caused all of such
prisoners to be employed upon the
public works and more particularly
upon public roads.
That during such period the cost
or the food, clothes, guards and
inrins necessary for the support,
maintenancn-anil guarding of all
prisoners, including said prisoners
in Hilo and Puna, has been charged
to the appropriation entitled 'sup
port of prisoners.'
That of said prisoners about fifty
have, during said period, and now"
are conllned in certain jails situate
in the districts of Hilo and Puna in
the Island of Haw oil, and iu accord
ance with the law above mentioned
mid under the discretion vested in
the said Minister, he has caused
wild prisoners to bo employed upon
t he public roads located in the said
districts of Hilo and Puna, includ
ing the public road extending from
Hilo to tho Volcano of Kilauea.
That the records of the Interior
Department show that since tho
commencement of the keeping of
such records it has always been the
eiiBtom to charge all ol such ex
penses to such appropriations.
That the defendant heielo has
during the present biennial period
and up to tho present time, never
refused to audit any bills incurred
for the support or guarding of said
prisoners or any other piisoncrs,
until the presentation to him of cer
tuin bills for food furnished to said
prisoners and tho bills for salaries
of guards of said prisoners, at Hilo
awl Tuna, incurred dining the
month of January, 1800, a copy of
which bills is hereunto annexed and
marked 'Exhibit A' and made n
That said bills wero legitimately
and lawfully Incurred by the De
partment of Government authorized
to incur them in accordance with
the long established precedent nnd
custom of the paid department, and
that the material services therein
described nnd claimed for have been
furnished to the said Interior De
partment and the amount therein
severally claimed; ore- lawfully due
to the several persons therein claim
ing the same.
That there is no other appropria
tion available from which said bills
can be paid, other than the said
appropriation for tho support of
That bv reason of the said refusal
of defend'ant to audit said bills the
complainant is unable to lawfully
pay the same, thereby causing un
necessary and uncalled for injury
and loss to the persons who furnish
ed such material and rendered such
services, anu preventing me com
plainant from properly carrying out
the duties of his olllce of Minister
of the Interior.
That on or about the 21th day of
February, 1800, the said bills were
in due and regular courseof business
presented to the defendant hereto,nnd
lie was requested to audit the same,
but defendant refused and still re
fuses to audit the same, claiming
that such bills should be charged to
the specific appropriation for public
work upon which the prisoners con
cerning whom such bills have been
incurred arc at the time, being en
gaged. That there is a sufficient balance,
of the said appropriation for Suppoit
of Prisoners to pay the said bills it
the same arc uronerlv audited.
That if said bills are not audited
it will entail irreparable loss to the
Hawaiian Government and to the.
public welfare by reason of the fact
that the said Minister and the other
proper authorities charged therewith
will he unable to obtain guards and
food for tiie enro anil maintenance
of said prisoners unless they can be
That the auditing and approving
of said accounts is a duty attached
to the office of the said George J.
Ross as Auditor-General and may
be legally required of him.
Wherefore your petitioner prays
that a "Writ of Mandamus may bo
issued and directed to the said
George J. Ross, Auditor-General,
commanding and enjoining him to
audit and approve the bills and ac
counts according to schedule 'A'
hereto attached, or to show cause if
any he has for not doing so before
this Honorable Court at a day and
place to bo fixed.
And your petitioner will ever
"S-iiil ilnfi-nrlnnt (Jporue J.
Ross by protestation not waiving
any right of exception to the insuffi
ciencies of said petition nor to the
right of said petitioner to maintain
the same, for return and answer to
such portions as he is advised it is
necessary to answer, says:
That he admits that he is Auditor
General of the Kingdom. And ho
says that the auditing or refusal to
audit any bill pi escntcd to him in
volves the exercise of his ollleinl
judgment and discretion, and is not
subject to judicial control by man
damus. And for further answer this de
fendant says that he admits that the
Minister of the Interior during the
twenty-three months last past has
caused all of the prisoners sentenced
to imprisonment at hard labor, in all
about three hundred iu number, to
be employed upon public works and
That he admits that the cost of
food, clothes, guards and lunoa
necessary lorltie suppoit, mainten
ance and guarding of all prisoners
has been charged to the appropria
tion entitled 'Support of Prisoners;'
but denies that the pay of lunas is
properly so charged.
That'he admits that about fifty
prisoners are now confined to cer
tain Jails iu the distiicts of Hilo and
Puna, and have been employed upon
public roads, including the public
road extending from Hilo to the
Volcano of Kilauea ; and says that,
they have been employed in con
structing the road last named.
That lie is ignorant as to the cus
tom of the Interior Department in
regard to charging such expenses to
That he admits that ho has not
heretofore refused to audit bills for
the support of prisoners until the
presentation of the bills leferred to
in said petition.
He denies that said bills were
legitimately and lawfully incurred
by -ilie Department of Government
authorized to incur them iu accord
ance with the long established pre-,
cedent and custom of said depart
ment; and lie says that when piis
oners havo been employed upon
public works, the custom has been
to make a ehargo against the nppro
piiation authorizing sticli work for
the labor of such prisoners, and to
tin n the same into the Ticasury as
a Government realization which the
complainant iu this caso has not
That he admits that the materials
and services claimed for have been
That he denies that his refusal to
audit said bills prevents tho com
plolnant from properly carrying out
tho duties of his office as Minister
of tho Intel ior.
That he admits that on or about
the 21th of February last paid biltn
were presented to him and ho re
fused to audit tho same. And he
says that duilng thu time- covered
by said bill i, said pi honors wcic
employed upon a public woik, to
wit: tho construction of a road from
Hilo to the Volcano of Kilauea for
which n special appropriation wns
made by the Legislature; and he
says that while so employed said
bills should not be charged to the
appropriation for the support of
prisoners. And he further says that
the nppropiiation last named nt tlie
time said bills were presented to
him was exhausted'
And he denies all other allegations
in said petition contained.
Whercfoie he prays said proceed
ing may be dismissed."
iiy the counr.
It is first to be considered whether
"the auditing or refusal to audit any
bill presented to htm involves the
exeicisc of his olllcial judgment and
discretion." Is it subject to judi
cial control by mandamus?
Tlie terms' audit and refusal
to audit arc heie used iu a sense
generally employed and understood,
but it seems to me a discrimination
mny be made witli advantage iu ac
curacy. It is not intended by the
woids refusal to audit, a refusal to
examine, literally to hear, the ac
count presented, but a icfusal to
approve the account.
Thu petition in this case alleges
in fact not a refusal to audit, but a
icfusal to approve ceitaiu accounts
and the Com t is asked to command
the respondent to approve them. To
approve llicnifor what and as what?
Tlie respondent defends his action
by stating that the prion labor,
concerning which tlie expenses in
these bills were inclined, was per
formed upon a work for which a
specific appropriation had been
made, viz. : the Volcano Road, and
in effect, that the bills were diawu
upon an appropriation to which they
wet c not chargeable, viz.: that for
the support ol prisoners.
Ha-, the Auditor-General author
ity to eonsiderand determine whether
accounts are diawn properly on
their appropiiatiou items, and to
refuse approval if he considers that
they are not? Wo must find the
answer in the language nnd scope of
the statute which institutes the office
of Auditor-General, O. L. p. 008,
llis duties relate to tiie receipt of
moneys and to the disbursement of
them! It is only witli the latter that
this case is concerned. JJy Section
G tlie Ministe'rof Finance is required
from time to time to calculate the
amount of moneys likely to become
duo and payoblc'during a period not
exceeding one month ensuing, set
ting it forth in a schedule under the
same divisions nnd heads that shall
Inive been employed in the appro
priation thereof, which sehedulu is
to be transmitted to the Auditor
General. By Section 7 before count
ersigning any such insttuuient tlie
And tor-General shall ascertain if
the sums therein mentioned arc then
(1) legally available for and (2)
applicable to the service mentioned
in tlie instrument, and so finding
shall countersign and return the in
sliument to the Minister, provided
that in case lie shall find that the
sums mentioned, or any of them, are
not then legally available or appli
cable to the service mentioned he shall
icturii the instrument totlie Minister
for correction, attaching thereto a
statement of what he has found to
be not legally available or appli
cable, lly Section 9, every account
shall be considered duly authorized
that is in accordance witli any ex
isting law or regulation, or has been
directly sanctioned by onu or other
of tlie responsible Ministers of the
Crown and covered by any appro
priation Act in force at the time.
The only construction in my view
to be placed upon the statute is that
the Auditor has the function of de
termining if the account is drawn
against the proper appropriation,
and whether there is a sufficient un
expended balance thereof. For a
broad .illustration tnken from two
adjacent items in tlie appropriation
bill, an account for "repairs and
furniture of the Insane Asylum"
would not be "applicable" to the
ap'piopriation for the "Honolulu
Fire Department," and such an ac
count being presented for audit
would presumably not bo copter
signed. And, presumably the Court
if applied to, would interfere by
injunction to prevent countersign
ing. Is the act of tho Auditor in
allowing or disallowing an ac
count, in respect to its being "ap
plicable lb the service mentioned"
ministerial or one of judgment, opin
ion, discretion? I think there eau
be no.doubt of its being of tto lat
ter description? In tlie case before
us the Minister of tlie Intel ior, who
is not to be presumed to be de
signedly making a drafl which is not
in accordance with the law, and
seeking too to enfoico it in Court,
differs in opinion from tho Auditor
General. It is a matter then of
judgment. In the caso of Castle v,
Knpena, 5 Haw. at p. 37 the Court
say: "The Courts will not under
take to guide the judgment and
discretion of public officers, which
would be to assume the supervision
of all blanches of Government, but
will only intervene to compel the
performance of purely ministerial
duties." This doctrine will not bo
controverted. High on Extraoidl
nary Legal Remedies, in Section 42
says, that "it is a fundamental rilo
underlying the cntirejurisdiulion by
mandamus, and especially applicable
iu determining tho limits to the ex
(Continued on page ;)
By (inler of the Uommtalnucrfl of ''row n
Linds, tho leise of tlio follow.
ing liinil-i for a
TERM OK TWENTY YEARS
Will be sold at Public Auction, at
the Auction Doom of L. J.
Ou MONDAY, March 24, 1890,
,VT HI O'CLOCK XOOX,
The Fl'bpond known M Pnuhnla,
ttntb at WnlUele. District of Ewa.
Oahtt, together with a snip of land
luO feet wide bnulei lug along said
I'ishpond; subject to light of way
granted tlahii Railway & Land Co.
Area 2!) acre, l.'pet price SI'iO
All of tliu ul'i Mud adjoining the
above Fishpond and running up to
the Government Itn.id to Wiilnuae,
containing -13 ncie?. l'pet SIO'i
The l:tiil huown as Mnkiunl. sl
ItMtt! lit KoolanpoKo. Oahu, except
luthc ilee lauds and a small pm
tlon of the ICnla. Good Kinin
land and well watered. Aiea VMi
aeies moioorlu's. Upset $-'j0 per
Tlie Aluipiuia of llouol.awal. In
ICa-uupa i, Maul, except the Tiiio
l.mds and lots of Knla land bv
sic vey LM -Il'-IOO. Principally gra
lighfnd, and comprises aiimcaof
.'.'J'O acres nioie or leas, Fp'ct
"200 per annum
Ilio Almimiia of Vt atiiMill or Main.
xituntc In Lah.'dna, tuiiii. GriiKiiitr
land. Ann '.',07 acre-. i'pet saw
The Lca-(! of the land Honokawal
and Wahikull will lie oid subject to .1.
r.jpinila's lenses which exphc. January
1. lfclii!, awl Febiuaiy 1, lbM, icpee
tielv. It is lequiteu that partle pnr-cha-lng
the lease of ihc-aid laud1: will,
not Inter ilinn 12 iiouths after the e
I ballon of thu invent, leases, leinnve
all cattle, goat and animals fioin tlie
wood, and dining the remainder of thu
new lease keep tliu foictt lieo of al
initio and imlnuds of nil kinds.
EQf-Mapsof all tlmnbove lands may
be Keen and particulnis obtained upon
application to the Agent of Ciown
Lands, Alliolnni Hale.
ct'RTis i i.uri:.
Agent of Crown Lands.
IL'U Jt-MJI hv
I'u Bnikc-iibuS. "A. CiitiV
a f o-h p, ly of
Hay & Grain
-IOU PAI.r. IIY-
Qii'eti Streit. tw
The l'prliie Clarilwntc
Have jut le cived n line
6, Wostengiiolin'sIXL. Cutlery;
Also, Chamois Skins,
HORSE BRUSHES & STABLE
NM) Supplies Generally. tf
Of Sin Franc! co
Practical Piano, Fipa & Itctd Organ
Tuaer & Itepairer.
!lavltifi.unrkcil in mnic nftiJnruutt
piuno uud 1 1 gun factories in ilio United
amies of America, I am fti Iv able: and
meimed in do nil kinds ol iepnlr woik
in tlio most idisfiieic.ry nunncr.
!& nn.LM can lie. lift ut H F.
I' hman's Juwelry Store, Fott Miem,
iu tlio Advertiser" olllci, or tlirugh
Mimnl Tub-phono No Hl7 .'Oil lm
Dr. GEO. I ANDREWS.
Ke-idineo & Ofllee:
Al ipiil htreit'i.
HILLS for BALL.
ALL ulIU ngiiiHt the ball committee
or Co A, llniolulu Utiles, will be
received bv tliu Chulrmsii,
K. It. THOMAS,
rm 1 w P. O Hoy flu 1 1 7.
ELECTION of OFFICERS.
VT the annual uicctingof ihel'toptu's
Iru & UefiiuiTulliig.Cn, held
TUESDAY, Miurh llili, the follow Inft
oflleers, who enntiituln uUq the. Heard
of Dinetorp, were chctrd:
W.O. Smith I'rcfl.len',
I nna AiiMln Vire.PrcMdcnl,
O, I'. Crtslli ...S cieluiy,
C, It llibhnp Tirnr.urir,
T. V. Hebron minor.
0. 1 OASTLK,
fi'O 101 Seciel.iry I. 1 iV It. I o.
Iv'oal Estate For Snlo.
rpVO Houses and Lots on
X Kohello Imc, I'atnina.
Comcnient to cteaui and l nun
en. very neaiiny loettiuy. i.oi on
ICIiil' street, near lliiminiUu'o Line. Far
particular apply to
., JOHN F. HOWLKH.
OrrA.T.'0uH:fe. 4'!0 !lm
OF IVISW YORK
Is issuing a new form of insurance which provides, in thu event of death, for a return of oil premiums paid iu ad
dition to the amount of the policy, or, should the Injured suivivc a given number of yeais, the Company will
return all tlie premiums paid with inteiest; or, instead Of accepting the policy and profits in cash the iccal holder
may, WITHOUT MEDICAL EXAMINATION and WITHOUT FURTHER PAYMENT OF PREMIUMS, take in
lieu thereof the nniouut of policy and piotlts In FULLY PAID UP insurance, pailicipating annually in dividends.
Remember, this contract Is issued by the oldest Life Insurance Company in the United States, and the Lar
gost Financial Institution in the World, its assets exceeding One Hundred and Twent3'-Six Millions of Dollars.
CST For full portlculats call on or address
S. JE$. ROSE,
Dee-'24-80 , General Agent for the Hawaiian Islands.
And will be DELIVERED FREE of CHARGE to
Cofl'ic, Ten, f'hooolnlo Si
lMpo & ClgitrctttrTobncco,
Open from 3:30 .v. M.
Solo Proprietors of BAILEY'S SARSAPARILIA & IRON WATER,
Ginger All, Hop Me, GreMfline, Rasjliwaie, Sarsaparilla, Mineral Waters, Elc.
ISLE PHONE 297.
e" All coimtumlcntioiiB imtf orders should bo addressed to
BENSON, SMITH & CO.,
380 1m Affenfs.
Gate City Stone Her !
Tlnce Filters nre easily elennoil,
and NEVER bceoinc CRACKED or
CRAZED by clmnge of t-mperulure of
'J he Flliei lnr Medium ! a XATURA L
STOXE, mined lioin tlieeuitli. Il N
iinllUe iinv oilier stone.
It Does Not Absorb and
Become, Foul I
IMPURITIES .never l'ENETRATK
II, but lie on tlie mii fue-. mill Intel nully
tlie bioiio lctnnliis iih pnio nnd white
niter years of iho us when t.iKen fioin
The Gate ("lly Stone lllter Is a per
feet purees?. It Is thu oiuy leal filter I
have eer seen. I would not lie without
o"ne for anv eonsitlointlon. It conveiti)
our lake water Into the best drinking
witter In tlie world.
UKNltV if. LYMA.N, M. Dm
M3 West Adiiins St , Chleujjo,
ISP For Sale by
Opj o-ily PpienUels & Co.'a Hank,
4 ' it Fort street, Honolulu.
-KOll SALE 11V TIIK-
-MtiiMiiiSM jjffiaMHrwHWiMnmr raMfgftTfiffirfnfrft . t . jwmryir
TUAL LIFE INSURAHGE
AKERY and COFF
ALWAYS OX HAND AND TO OUDKU
Buns. Rusks. Doughnuts, Picnic Rolls,
Jsiles, (Hipr Snajs,
I3IJCJL. of 1T..VRI3:
rig's Feet, Cold Ham,
MANILLA AMERICAN CIGARS !
A LAIK1K AFHOllTMEXT OF
Pipes, CIgnv & Cigarette 1 1 ol dors, Cold Drinks, Etc.
until 9:30 v. m. Saturday night, open
OKADE WORKS COMPANY.
rand-: PLAIN: SODA,
Bt fKHtt . js. asm nra
e JLM m m?wm:
HAVE JUST RECEIVED Ex AUSTRALIA
A Choic3 Line of Dry & Fancy Goods,
. ' INCLUDING
JtCld (SIovob from 5 to UO JSutton,
Hosiery, SMlnesScDtch Gingbims, latest patternsj'Woolen Dress
fV '' ALSO, A CHOICE LOT OF
Boys', Youths Children's
Our flreat Anniial Remnnnt rlalo, which
COMMENCES THIS SATURDAY
And will phi paps any that has over taken pb.eo at this or any other
KE3I3,tXTN IN ALL DEPARTMENTS !
We must sell QiirJlemnants and you will bo glad to buy them nt low prices
nt which they are offered. Ho oure to bo on hand Saturday.
X. II. All Knott Markt-it with Plain Kinnren and Hold fur Cuh Only
Chas. J. FISHELS,
Tlio Leading; Millinery Houee, Corner Fort & Hotel sts.
Great Reduction Sale !
AFTER TAKING STOCK I
. '. I
IMMENSE BARGAINS ARE OFFERED
N OF TIIE FOLLOWING GOODS
TiUOETetoriiary lfiftli, Only.
124 pair ; of Undressed Kid Gloves !
0 aml8 Buttons in porfcet oidor nt $1 a jinlr Grcnt Bargains.
All my DRESS GINGHAMS about 140 pieces to select from aro offered nt
i'j'V V , Cofit Trico. A Hinnll liuo of
Scotch Ginghams at a Great Reduction !
READ THIS A largo neaortment of READ THIS
WJaiflTJE DRESS GOODS,
Such as Piqueft, Enibioidcrod Swisfos, India Linen, Plain Swiss, Nainsook and
inanyihor linoB of IVhito Gooda. I will eell nt eiich ft
' '' Vi VtlC0 "iat everybody will buy thom.
gtf Rbtn'onibor, February
' . -,., ! , i .. ijt- .l,ui't . .rfitBLutiMiEr', c ' tJ i. . v -. Ai. -' .'- i '
MV& Cakes, Etc., Etc.
pnit of the city, .pl
Spiecd Tonetie. Spiced Beef, Saladc, Elc.
all night. Hell Telephone 282.
Clothing, Trunks, Baijs & Valises.
it so eagerly looked (or by
& FOliT STUEETS.
MANY LINES OF
15th will oIobo this Sale.
Cornor fotol & Fort Htrcoifj.
'i4iii rSLMii tuln
.aV,4i&A AJAtokS''ajti.iU ucrti