
    NO. 35.
    L. L. McCANDLESS v. MARSTON CAMPBELL, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII.
    Appeal from Circuit Judge, First Circuit.
    Decided February 21, 1911.
    Hartwell, O.J., Perry and De Bolt, JJ.
   Mandamus to' compel respondent

to grant petitioner’s application for leave to connect certain premises with the public sewer. Demurrer to petition overruled by trial judge and interlocutory appeal allowed. Per curiam: The* petition contains the assertion that sections 1036 and 1037, R. L., are unconstitutional. The question of unconstit.utionality was not discussed in any of the briefs or in the oral argument of the deputy attorney general, the parlies taking the view, apparently, that the assertion in the petition was, like an allegation of fact, binding upon the court for the purposes of the demurrer. The statement in question is purely of a conclusion of law and does not bind the court. If it becomes essential to a disposition of the appeal, the issue of the alleged, unconstitutionality will be considered and decided. Further time is allowed the parties for the filing of briefs and the presentation of oral argument on the subject.

W. S. E dings and P. L. Weaver for plaintiff.

E. W. Sutton, Deputy Attorney General, for defendant.  