OPINION OF THE COURT BY
TOWSE, J.
(Le Baron, J., dissenting.)
This is a proceeding invoking the original jurisdiction of this court upon a question arising under a writ of mandamus directed to an inferior court.
The proceeding is exclusively statutory. Under the heading of “Extraordinary Legal Remedies,” chapter 211, Revised Laws of Hawaii 1945, defines the nature, object, procedural practices and the criteria for determination of
the sufficiency of the application, the alternative writ, the return and the peremptory writ of mandamus. It declares that the object of the writ is to “prevent a denial of justice,” and that “it may be directed to judges of inferior courts commanding them to render justice.”.
The sworn petition addressed to the justices by way of
ex parte
application alleges,
inter alia,
that the refusal of a continuance of two weeks of “the hearing of petitioner’s motion to show cause why a mandamus should not issue against respondent” below (petitioner herein), was “unreasonable, arbitrary and a clear abuse” of the discretionary powers of the respondent and that his action in denying the said continuance “was capricious, arbitrary and against the public good and the administration of justice.” The court below granted the respondent a continuance of twenty hours to answer the order to show cause.
Upon the day assigned for answering the order, the respondent filed due return, placing the proceeding at its present statutory juncture: “If on the day assigned for answering the order, the party to whom it is directed answers and shows sufficient reasons to justify his conduct, the complaint shall be dismissed * * *.” R. L. H. 1945, § 10266; or, in the alternative, “* * * if the cause shown shall be deemed insufficient, then a peremptory mandate shall issue * * * ” R. L. H. 1945, § 10267.
The petition and return framed two. issues for determination : first, whether mandamus lies to compel the inferior court to exercise its discretion in a particular manner; second, whether, upon the transcript of the proceedings had upon the hearing on the motions for continuance annexed to the return, it is shown that the inferior court acted in an unreasonable or arbitrary manner or committed an abuse of discretion in denying the petitioner’s request for a two weeks’ continuance upon the grounds alleged in those motions.
In the Matter of the Application of Richard Ivers, Collector-General of Customs, For a Writ of Mandamus Against Antonio Perry, First Judge of the Circuit Court of the First Circuit, 12
Hawaii 99, 103, decided in 1899, the principle of law applicable to the first issue was settled by this court: “In what case such a writ is warranted by the principles and usages of law, it is not always easy to determine. Its use has been very much extended in modern times, and now it may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do. It does not lie to control judicial discretion, except when that discretion has been abused.”
Thus in the broad field of discretionary acts and alleged abuses thereof, subject to remedial action by mandamus, an abuse of discretion by an inferior court could be redressed by a writ of mandamus issuing out of this court to the end that, upon a showing of abuse of discretion, the abuse will be remedied to prevent a denial of justice.
Upon the record before us some of the more substantial and material facts which lead to the conclusion that the petition is well-founded and that the cause shown by the return is insufficient, thus warranting the inteiwention of this court to prevent a denial of justice, are: the necessity for the immediate correction of the alleged abuse, considered in the light of the summary nature of the proceedings themselves; the subject matter of the litigation has been in existence for a period of eleven years; one of the issues for determination by the inferior court, namely, the refusal of the auditor to issue the warrants in question, has been the subject of conflicting administrative opinions and apparent differences of opinion by successive boards of supervisors of the City and County of Honolulu for approximately four years; the large sum of public funds in controversy; that the proceedings below are brought
against the respondent as auditor of the City and County of Honolulu; that a vacancy in the office of county attorney of the City and County of Honolulu existed throughout five of the seven days accorded the respondent in which to make return to the alternative writ; that upon service of the alternative writ below the respondent in good faith sought counsel to represent him in that capacity as by law provided, but was unsuccessful in so doing' through no direct neglect or failure to act on his part; that so failing, he thereupon employed private counsel of his own choosing at 4:15 o’clock p.m. on the day next preceding the return day theretofore set for him to show cause; that his attorney-client conference at that time of ten or fifteen minutes was limited solely to discussion of a contemplated request for a continuance of the return date set for the following day; whether the continuance of twenty hours granted by the inferior court to the respondent upon initial appearance in the litigation was a reasonable period for an attorney enjoying a normal practice in which to investigate and collect available facts, advise his client thereon and prepare and file a return in the circumstances.
In so far as the record before us now discloses, the basic issue for determination in.the proceedings below may well have extended beyond the bare question of whether the respondent was faced with the discharge of a ministerial or discretionary act, and could have involved and encompassed the issue of lawful or unlawful appropriation and payment of a large sum of public funds in a disputed matter wherein the auditor, as an official of the City and County of Honolulu, necessitated and sought a judicial determination of his right or duty to act, or a justification in law for his continued refusal to issue the warrants in question.
Prom the nature of the motions for continuance, the grounds thereof, and the showing made pursuant thereto,
it affirmatively appears that the request of counsel for a continuance upon initial appearance was made in good faith and not for the purpose of delay. The respondent was served with the alternative writ on the 11th day of April, thus according him a period of seven days in which to secure the services of an attorney, as by law provided, and to prepare his return thereto. He was unable to accomplish this until the late afternoon of the day prior to the return day, at which time he employed private counsel. Counsel, in the circumstances, cannot be held accountable for the
ad interim,
acts and doings of his client in those matters which were accomplished prior to entry into the attorney-client relationship. Nor, can they be imputed or considered in retrospect as the neglect or failure on the part of counsel upon and following assumption of the relationship.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT BY
TOWSE, J.
(Le Baron, J., dissenting.)
This is a proceeding invoking the original jurisdiction of this court upon a question arising under a writ of mandamus directed to an inferior court.
The proceeding is exclusively statutory. Under the heading of “Extraordinary Legal Remedies,” chapter 211, Revised Laws of Hawaii 1945, defines the nature, object, procedural practices and the criteria for determination of
the sufficiency of the application, the alternative writ, the return and the peremptory writ of mandamus. It declares that the object of the writ is to “prevent a denial of justice,” and that “it may be directed to judges of inferior courts commanding them to render justice.”.
The sworn petition addressed to the justices by way of
ex parte
application alleges,
inter alia,
that the refusal of a continuance of two weeks of “the hearing of petitioner’s motion to show cause why a mandamus should not issue against respondent” below (petitioner herein), was “unreasonable, arbitrary and a clear abuse” of the discretionary powers of the respondent and that his action in denying the said continuance “was capricious, arbitrary and against the public good and the administration of justice.” The court below granted the respondent a continuance of twenty hours to answer the order to show cause.
Upon the day assigned for answering the order, the respondent filed due return, placing the proceeding at its present statutory juncture: “If on the day assigned for answering the order, the party to whom it is directed answers and shows sufficient reasons to justify his conduct, the complaint shall be dismissed * * *.” R. L. H. 1945, § 10266; or, in the alternative, “* * * if the cause shown shall be deemed insufficient, then a peremptory mandate shall issue * * * ” R. L. H. 1945, § 10267.
The petition and return framed two. issues for determination : first, whether mandamus lies to compel the inferior court to exercise its discretion in a particular manner; second, whether, upon the transcript of the proceedings had upon the hearing on the motions for continuance annexed to the return, it is shown that the inferior court acted in an unreasonable or arbitrary manner or committed an abuse of discretion in denying the petitioner’s request for a two weeks’ continuance upon the grounds alleged in those motions.
In the Matter of the Application of Richard Ivers, Collector-General of Customs, For a Writ of Mandamus Against Antonio Perry, First Judge of the Circuit Court of the First Circuit, 12
Hawaii 99, 103, decided in 1899, the principle of law applicable to the first issue was settled by this court: “In what case such a writ is warranted by the principles and usages of law, it is not always easy to determine. Its use has been very much extended in modern times, and now it may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do. It does not lie to control judicial discretion, except when that discretion has been abused.”
Thus in the broad field of discretionary acts and alleged abuses thereof, subject to remedial action by mandamus, an abuse of discretion by an inferior court could be redressed by a writ of mandamus issuing out of this court to the end that, upon a showing of abuse of discretion, the abuse will be remedied to prevent a denial of justice.
Upon the record before us some of the more substantial and material facts which lead to the conclusion that the petition is well-founded and that the cause shown by the return is insufficient, thus warranting the inteiwention of this court to prevent a denial of justice, are: the necessity for the immediate correction of the alleged abuse, considered in the light of the summary nature of the proceedings themselves; the subject matter of the litigation has been in existence for a period of eleven years; one of the issues for determination by the inferior court, namely, the refusal of the auditor to issue the warrants in question, has been the subject of conflicting administrative opinions and apparent differences of opinion by successive boards of supervisors of the City and County of Honolulu for approximately four years; the large sum of public funds in controversy; that the proceedings below are brought
against the respondent as auditor of the City and County of Honolulu; that a vacancy in the office of county attorney of the City and County of Honolulu existed throughout five of the seven days accorded the respondent in which to make return to the alternative writ; that upon service of the alternative writ below the respondent in good faith sought counsel to represent him in that capacity as by law provided, but was unsuccessful in so doing' through no direct neglect or failure to act on his part; that so failing, he thereupon employed private counsel of his own choosing at 4:15 o’clock p.m. on the day next preceding the return day theretofore set for him to show cause; that his attorney-client conference at that time of ten or fifteen minutes was limited solely to discussion of a contemplated request for a continuance of the return date set for the following day; whether the continuance of twenty hours granted by the inferior court to the respondent upon initial appearance in the litigation was a reasonable period for an attorney enjoying a normal practice in which to investigate and collect available facts, advise his client thereon and prepare and file a return in the circumstances.
In so far as the record before us now discloses, the basic issue for determination in.the proceedings below may well have extended beyond the bare question of whether the respondent was faced with the discharge of a ministerial or discretionary act, and could have involved and encompassed the issue of lawful or unlawful appropriation and payment of a large sum of public funds in a disputed matter wherein the auditor, as an official of the City and County of Honolulu, necessitated and sought a judicial determination of his right or duty to act, or a justification in law for his continued refusal to issue the warrants in question.
Prom the nature of the motions for continuance, the grounds thereof, and the showing made pursuant thereto,
it affirmatively appears that the request of counsel for a continuance upon initial appearance was made in good faith and not for the purpose of delay. The respondent was served with the alternative writ on the 11th day of April, thus according him a period of seven days in which to secure the services of an attorney, as by law provided, and to prepare his return thereto. He was unable to accomplish this until the late afternoon of the day prior to the return day, at which time he employed private counsel. Counsel, in the circumstances, cannot be held accountable for the
ad interim,
acts and doings of his client in those matters which were accomplished prior to entry into the attorney-client relationship. Nor, can they be imputed or considered in retrospect as the neglect or failure on the part of counsel upon and following assumption of the relationship. To interpret the record before us as warranting the conclusion that an attorney, upon his initial appearance in a proceeding of the nature of the controversy below, who was retained only a matter of hours prior to his initial appearance in a matter of such apparent magnitude and importance (as is patently present here) is not entitled to a reasonable extension of time predicated upon the grounds for continuance alleged in the motions, would be a denial of justice to the respondent-client.
The remedy sought is classed as “Extraordinary.” It does not only apply to extraordinary circumstances, but, when invoked, preserves the substantial rights of litigants. The writ of mandamus is of a corrective, remedial nature and is exercised upon legal and equitable considerations. (See
In the Matter of Waterhouse,
2 Haw. 241.) The ultimate purpose of the remedy sought herein being to prevent a denial of justice, we conclude that such denial would have attached had the respondent below, under the facts and circumstances presented by the record before us, been compelled to show cause on the day set for his return.
Flexibility in the application of the principles here announced must be recognized. In applying the existing statutory principles and mandates governing the issuance and determination of petitions for mandamus in this matter, we are constrained to conclude that if the exercise of discretionary acts of inferior courts are to be accorded classificational distinctions or considerations other than the statutory spirit and objects of the writ dictate, then corrective steps lie in legislation and not in this court. The remedy is not available to correct alleged abuses of discretionary acts of every kind and nature in judicial proceedings. Therein lies the inherent danger of abuse upon abuse.
Obviously, it is not in every case wherein a petition alleges a grievance regarding the granting or denial of a continuance or extension of time in a judicial proceeding that the writ will issue. Exercise of judicial discretion should be intervened upon and rectified only in those matters wherein a petition, pursuant to the statute on
ex parte
application, discloses a prima facie case of abuse, and where, as here, the record bears ample justification for the issuance of the peremptory writ. Its issuance herein is provident and timely.
The nature and result of remedying an abuse of judicial discretion is no more the substitution of an act of discretion by this court for an act of discretion of an inferior court, nor any more a direction to an inferior court to exercise that court’s discretion in any particular manner, than a finding with accompanying corrective remand in the determination of a cause before this court on appeal. The results remain constant. The remedies are variable. Both are addressed to the prevention of a denial of justice.
Determination of this cause has consumed two days. Since the date of filing of the petition herein on April 19, 1951, however, counsel for the respondent below has pre
sumably invoked the opportunity to familiarize himself with the facts concerning the position of his client to an extent sufficient to enable him to prepare a return to the alternative writ pending below.
R. K. Sharpless,
Deputy Attorney General, for respondent.
A. K. Trask
for petitioner.
A peremptory writ will therefore enter, directing the respondent herein to fix the time for the respondent below to appear and make return before him at a time convenient to the court below, which time, however, shall be not less than forty-eight hours subsequent to the issuance of the peremptory writ herein.
It is so ordered.