The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1872-11-23
Police Court Decision.

AS public attention has been attracted 10 the sub
ject of Hawaiian halas, or "song-dances,' we have
procured from Judge Montgomery, the Police Magis-
trate, a copy of his decision in a case that has been
pending in his Court for several weeks past.
Rex Us. Kaluaioahu aud eight others-Chareed
with promoting a native hula at Ksuluwela, Homo
lulu, on 9th September last, in violation OF Chapter
LV, Sections 6 TO 10. inclusive, of the Penal Code.
which reads as follows, viz
aThe Minister of the Interior may license INV theatre. cir
Gus, Hawaiian hula, public show. o. other exhibition not Of an
ment Of money! &c, sc.
The 10th Section makes a violation of il. puuisha-
bic by a fine not exceeding 500, or Imprisonment
at hard labor for a term not exceeding three months.
Two witnesses were examined for the Crown, the
first of whom proved that he was at the hula given
for the benefit of q child at its mothers house. and
that its grandmother sat on a mat in the apartment
and gathered in sums of money thrown to her, and
that some people went and took change that there
was a roast-pig feast, at which he and many others
partoOk that the sums contributed were free gifts
and not a tax or charge, and thinks that $50 may
have been collected that all the nine respondents
took part in it, sitting on the aoor and motioninp
with their hands, and never performed standing
that notice of the party was given and q national
flag hoisted that the object of all hulas is 10 get
money and that he saw little children give a dime
each.
Kealakai, a military officer Of intelligence, proved
that he was present, and that the party was a birth
day one for a child of a soldier, who was his friend
that he paid 70 cents to the grandmother. and that
the performances were with the hands and bamboo
only that the performers called the relatives of the
child, and that they alone gave money. No money
was charged or paid on entrance aud no one was
prohibited from going in by reason of not paying.
1t was contended by the respondents counsel that
this evidence not only does not prove, but positively
negatives, the existence of admission by payment of
money for the child, and that there is no pretence to
allege any intentional evasion of the law while the
Attorney General contended that although the letter
~ h GNa tns n hnc mt hnan -.&-AI - -.
lated, that its spirit and intent have clearly been so.
inasmuch as the publicity of the party is fully estab-
lished, and because money was paid and contributed
by those who attended, and that the intention of the
Legislature must be assumed to be TO render all pub
lie hulas at which money was paid at any time dur
ing their continuance liable to be licensed, and that
too rigid adherence to the language of the statute
should be avoided where it was manifest that there
was a palpable evasion of it.
The Goth Section of the Civil Code, which first
enacted this clause, and whence it was transferred
to the Penal Code, forms part of the general license
law of the Kingdom, and must of course have been
approved by the administration of the day. II was
framed under the following joint resolution of the
Legislature of 1859:
"REsoLvED, That whereas, { is desirable to codny our ex-
i sa0s,a lssS " His i. Roy hSy1 6b nlis i + Prince pn5 ;S. k 5SanensSs the
Nj. Robertson. Associate Judge of the Supreme Court, are
adding notes with reference to important decisions Of court
under the laws, wherever they may think necessary, and to
with an appropriate index for facility Of reference"
The Section so framed was afterwards adopted
by the Administration under whose auspices the
Code was introduced in the Legislature, who re-
ferred it TO a Select Committee of five from each
branch, composed of Ii. f.. NJ. Kekuanaoa, II. r.
III. Prince Kamehameha, Ii. E., ID. L.. Gregg, Hon.
G. q. Hopkins and Hon. l.. Haalelea, from the
Mobiles. and the Hon. Messrs. G. NJ. Robertson, J.
w. Austin, j. i. Dowsett, Ii. l.. Sheldon and S. u.
halama, from the Representatives. every one of
whom was eminently qualified for the Task, end the
great majority Of them competent English scholars I;
moreover, His Royal Highness and the late Judge
Robertson were members of both committees and
had this matter twice under review. They reported
formally on Section SO, just as it now stands in the
Code, which eventually became a law.
Must we not presume that these committees, COM
posed of so very eminent and competent men, did
not frame that Section carelessly, heedlessly, or with
out due consideration and appreciation of the re-
guirements of the nation as to licensing hulas, or
that the Limitation rendering a certain class of hui
las, only, viz, those where admission is obtaina-
BILE by payment of money" liable to be licensed,
was their deliberate and we'll considered act and in
tention. The clearness and perspicuity of its Ian
guage and the eminent requirements and recognized
business capacity of every member of that commit
tee abundantly establish such an inference. Indeed
| doubt if any other Section of the Code expresses
the intention of its trainers or the Legislature in
more distinct and unambiguous phraseology.
viii any one venture TO aliege that any member
of these committees, and more especially His Royal
Highness, was so Indifferent to the rights and re-
quirements Of his cOuntrymen in a matter so vitality
affecting their most popular and favorite amusement,
as to treat it heedlessly, indifferently, or without
commanding his best attention.
Admission by prepayment of money as in the case
of theatres and circuses, seems very clearly TO be
made the element and condition rendering a license
necessary. They are in juxtaposition in the statute
which places them on precisely the same level in all
respects. Now theatres and circuses are VIGOROUSLY
matters of business, erected az great cost, and car
ried on by their proprietors for profit and e~molument,
and admission is always obtainable to them by pre-
payment of a fixed and definite amount which is so
far compulsory that the party cannot enter until he
has paid it. A native hula to be held liable to a
license, must of course be of the same nature and
character, and carried on on the same principle as
they, and be analogous to them in these important
respects. Does the evidence above quoted establish
ouch an analogy?
Had the trainers of the Section or the Legislature
meant or intended to impose a license on such a So
called hula as this, nothing would have been easier
or more simple. So far was such a course from their
intention that they deliberately took precisely the
opposite course by clearly limiting the necessity Of a
license to those only carried on like theatres and cir
cuses az matters of business, to which prepayment
on admission is an absolute necessity, and which un-
mistakeable limitation necessarily excludes all others,
for eEpressiO uniUs est ercEusiO Giterius in the eye Of
the law.
It is in proof that the object of every hula is to
get money, which was just as well known to these
committees and TO the Legislature as it is TO us to-
day, yet they declined to adopt IT as the condition for
q license except with the Limitation of prepayment.
~ MS AiNAHh~ IA bH6 o ChAhAAS . W
ascertain the intention Of its trainers and of the
Legislature. And when its language is clear and
free from ambiguity and distinctly and inteligibly
expresses that intention, it is the duty of every
Court at once to adopt it; and to that rule / feel it
my duty to adhere in this case.
The assembly complained of seems to have been
of an inofensive character, there being a total alb
senee of dancing or other indecent or offensive de-
monstrations, the performers having sat on the floor
from first to last and used only the arms, which is
called the hula pull nor was there any intemper-
ance, noise, quarreling or disturbance of any kind.
l find nothing in the evidence which indicates any
intentional or preIneditated evasion of the law, and
it seems to me that the fair inference from all the
facts as shown in the testimony is, that ii was per-
fectly bona fde, only the child's relatives having
contributed, and no strangers asked or expected to
do SO either before or after admission.
i'll were to convict the respondents on this charge
under all the facts and circumstance above referred
to, 1 feel that / should indeed re6der myself justly
liable to the imputation of undue severity to the ma