The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1858-12-23
special notice OF such agreement, and bound hinsel

special notice of such agreement, and bound himsel
To respect its teims. ei
Let US now pass to the examination ot tho
Pr'ncipai ground upon which the right of nustpr,ge
Is c'aned hy the laintii, viz by statute l,w The
Ia" referred TO is the JOINT resolutions on the sub
1ect OF rights In lands and tile LEASING n,rcb s;n
ana dividing of the e. passed on tie 7tb H. -
November, 1916; which it is contended and RIGHTLY
So nave never been expressly repealed by the egi.
aIure- lhe plaintiff relies, more particularly unon
part OF the first of those resolutions which read.
as i,i'ows, VIZ % The rights OF the hoaaina the
lhd consist CT ms own taro patches, and all other
PAGES which he himself cutivates tor hi. oyv, Nc
aud II he wi>h to extend his cultivation on unocc
Picd parts lie has the right to do so He has also
rights IN the grass land, if there be anv under his
care, and he may take grass for his owl, use or for
SALE and may also take fue. and timber from, tho
mountnns tor himself He NAV also pasture his
horse and COW and other animals on the l,,d h,t
not IN such numbers prevent the Knnohiki from,
PasturlnS ms. lie cannot make agreement with
others for the pastura.e of their animals without rho
consent of his konohiki, and the Minister OF the
Interior
This deciaratory enactment was passed by the
Legislature at time when the old system AZ to the
tenure q" lands was still In existence, and before the
passage OF new laws upon the subject OF land titles
the operation OF the land Commission and the great
Division 't 1S4S, had brou st about and perfected
that entire revolution IN the law affecting rights in
land. and land titles, which las taken place since
the We 1916. The character of the old system OF
tenure. and the state of titles and interests IN land
az the time of the passage of the joint resolutions of
November, 1916. may readily be gathered from those
resolutions themselves. and from the fundam ntal
- Principl adopted by the Board Commissioners
To quiet land titles, in their adjudication # claims
presented to them.' 10 be found pages 81 to 81,
inclusive. OF the I'd vol. Statute Laws. While It IS
true that tie joint resolutions referred have
been expressly repe led, think there can be no
doubt that. a least those ot them which merely
declaratOry the law relating rights i'll land, av
all been I'm miledy annuiled and perseded by other
enactments upon the same subject
in order To ascertain and declare what is the
law upon that subject IT Is necessary examine and
consider together the sew. raj enactments 9eri
ta, which to Ne fond standing upon the statute
book. The joint Resolutions of November, 1915, |
only declaratorv OF tile rights land,
scssed iii common at that time by the Government
the kOnOhikI, and the hoaaina but also, part
directory to the mode of leasing. purchasing and
dividing nf lands having due reg rd TO the common
rights OF these several porties so far these Re
solutions provided for division of land, their pro-
visions have been entirely superseded by other and
more expeditions arrangements. fr while tae Great
Division of lS4S separated and defined the land of
the King and Government. and that OF each konohiki
the action of the Land Commission separated and
defined the land of every hoaaina who succeeded in
sustaining a claim before the Board.
Ii was evidently the intention OF the Legislature
that. whenever. in any case, tract Of land di
vdod between the several parties interest those
rights which they had previously held in common,
while their interests in the land were undivided.
should to be so held. The fourth Joint Reso-
luton provides that, - Ii any wish to obtain
allodia title to the land which he has himself cult
waited" he should have the right to petition the
Minister the Interior for the purchase of such
land, and If the la sold and patented the price
chtImei therefore to be divided equ lily between
the Government and he konohii The fifth Joint
ReSo.uto' reads as follows " Whenever any indi-
vidual allodi1l title to his cultivated
grounds, specified above, and the pasture ground
and uncultiyated parts remain, then that remainder
shall belong equally I, Government and to the kono-
hiNi'' The seventh Joint Resolution provides that.
- Ii any kon0hki wish u have mis- portion OF any
given iii ailupuas off to him according to his
rights IN the same, that lie procure allodiai
title therefor, he may petition the Minister OF the
Interior, stamped paper. who shall have power,
with the appreciation OF his Majesty i'll Privy Coun-
Gil to complete the arrangements tor the same, alter
which there shall be given 20 the konoiki patent
for the same Can it be claimed that, after di-
vision OF the Lind betw en- the several tHrties. III
COZ ornity with the provisions just gu tel, the iioa-
still had the right TO pasture his horse and
and other animals on the land OF the konohlkI
to an indefinite extent: We think not. 1t might
with equal propreI be contended that ne sui haa
the right to extend his cultivation on unoccuple1
parts' OF the k0nohiki's land, without his consent
We are much strengthened in this view OF the case
by the reading OF the Act passed the 6th day OF
August, 1850. confirming certain RESOLUTIONS pass
ed bv the hing Pryy CoDnciI on the Zlst uty vi
De ,enlber 1919. granting fec simple titles, free oi
Communication, native tenants. (or hoaaInas) ior
their cultivated lands and house lots. and also pro-
tectinc the hOaainas Ill the enIoyme..t OF certain
rights therein enumerated, as against the sweeping
operation OF the knnUhiki's aliodial tltes- Inc 3d
section of that empowered the Land commission
to .,rlnt simple awards. Gnt; 10 denne anu sePa
ate the ,ortious of land belonging to different ind
viduas 80 that eieh HaGms tr'd s'o"d be 1g 't'eg.
The 6th section reads as follows: In granting 10
the Ieo Ie their cultivated grounds, or kdo ians'
tbev hall only be entitled what they have really
cultivated and which he in the form OF c"i'i'a eu
lands and not such the people may nave cu!tl-
,.ted i'm different spots with the seeming intention
of enlar,ing their lots shall they be e"ted 10 me
tcaste lands. r.. poeo,
>; - of November 1876, and tbe Act OF the otn oil
Arous, 1880 we lind that several OF Inc provisions
ot the latter are clearly inconsistent with muse "
the former and are OF opinion tha.' 50 i %
- : trne the provisions OF 1916 must De heiu' ny
.aes,rv ;rnuIication, to be repealed by tno-e oi
Is5O The first, we have a!ready lhuia'e"' -
ma. sed while the old system OF lana tea.ui ten ,: %
IN full force and the rights OF the dniereht p ~
;,,te, ested in the land were as yet uidi'iueu w
- &c ,,asSed at time when the entire ciiaiSo
e svstern which has taken place since 1910 was IN m
nrogreSs, and had already, I" Srf ~ 49, Ia hy
achieved We think the +, blowing i'nSu.se' rI,
the Master OF the !olsin me case oi ;., e ats
- Rlss applies here: - If two Inc consistent a.s
~. ,,assed at different times, the last Is e 80
- fad e obe lience cannot be observed wilhou' ee
,.,;no from the first it Is the hrst w'uc' nu;
way Every act OF Parliament mus S ~ s,,bs;stino
,.,;,b reference to the state OF the law : =. Ie
- :, ca,ne into operation, and when IL Is 70 %
l;a5 . II cannot otherwise be raiionaiiy eon
Iro,v act is made, either tor the purpose ~ -, he
change in the law, or for the purpose Vi ,;,,,r, of
-. tho law" So, aso the filowihg uiS,
eiai,'S Da,a, - IN the case of Reg. vs. lnhaoi.'nS
~ g, Fdmund's Salisbury ' w hile we n'iu - -
S.;,;ye enactment Is not to De fesil iiiie -.
Pc we must also ON the maxiln' 'eyeS er IL
r;ores priores contrdr1as aorogd,a, Stotntes D.
es IN operation.'' (See Dwarris on t. .ha 1st
co, n ~ tb;s ground must hold tha' s
TO- Resolution of November, 1916, mas oes. .a;n
taJ and that the enumeration 1iei .Dart
"a of certain specific rights oil .ne no J has been
from his right to the land ne os the same rights.
= = nar.eded by the specification OF Tue IS Au9nst
iperses: :: 10 7.h Section of the Act CT Aus''''