21 Haw. 171 | Haw. | 1912
SUPPLEMENTAL OPINION OP THE COURT BY
Polio wing the filing of the opinion in this case reported ante p. 136 counsel for the railway company informally notified the court of the company’s intention to take an appeal, and the question as to what form the judgment should take having arisen counsel for both parties were notified that they would be heard on the point. The matter has been fully argued orally and in briefs. Counsel for the government have taken the position that, upon several grounds which we will not stop to review in detail, no judgment can properly be entered in the case. Counsel for the railway company contend, first, that the submission should be regarded as having taken the place of a petition for a writ of mandamus, in which case the judgment should award a peremptory writ, and, second, and alternatively, that it may be regarded as a bill for an injunction, in which case the prayer for an injunction would be denied and the bill dismissed.
We think the submission was entered into- by the parties without any thought as to the entry of a judgment in the case. It seems as though counsel had in mind only the obtaining of the views of the court on the questions stated in the submission.
There are several reasons why the submission should not be regarded as having taken the place of a bill for an injunction to prevent the paving of the portion of the street referred to' by the government. The submission contained no allegation of any threat that unless the company should do the paving the government would do it at the company’s expense; nor was there an allegation that the company had been notified that the municipality was about to proceed with the work with the inténtion of bringing suit against the company to recover the cost; the municipal officials were not made parties; and it is not likely that an injunction would have been sought against the Territory.
Nor can the submission be regarded as a proceeding for a writ of mandamus instituted by the Territory. In addition to the fact that the parties appear not to have contemplated the entry of a judgment, but only that the court would answer the questions propounded, the submission itself shows that the railway company assumed the position of plaintiff in the case. The concluding clause of the submission is as follows: “Wherefore, plaintiff and defendants submit the matter for judgment.”
An argument was advanced by counsel for the government
For the reasons above assigned we hold that this submission cannot be regarded as an injunction bill or a proceeding in mandamus, and that no enforceable judgment can be entered in the case. We also hold that because of the fact that such a judgment cannot be entered the entire proceedings must be dismissed. It is so ordered.