The Hawaiian gazette., 1876-05-24

/ On appeal non tol'ee Court ot Hooolela.
OPINION El HAsxfS, J,
Z Il appears IRON The rapsrS in This case, ths;
I The spPelSet Is rotall eQeov dealer n see city
/ of Hoao,elu, ucdes license sicusd the 2ls; u
[ September. iS75 which was Issued 10 him ia sc-
I eosisaes With The LAW ep0s bis ding The eoui
rsqe3Ted Ry The 4lSs chapter, section s6, Of tho
I fsnsl Code. Which reads IS icllows ;-~ All per
I sous sPplytng Tor licsrSe HrGer The provisions
I eC tbs chapter shall bsfere recelyiog ths sane.
7 Sic 6osG, (ju fern Sinilsy to The following J
the Ssms Sejug always sabjeet 70 toe approval o.
I the NioistsS 4 ln,esioy~ (FouoWs The form 0l
a oocd.l fee eoudlllOa oi th,s obligation Is aS
/ lolg0Ws; Now, therefore.
If desiGS the eoutipcsnes of this ieenss the said
-Sbad Dot contribute 10 the violation ot
sny q the laws Oi this kingdom. nor violate say
Of the conditions of his leeuss-eopy Of which Is
hereto sausxe3-thoa this obligation shAll.6e
vold. Otherwise, apoa pSooI being made TO the
satisfaction ef i COMMON nsssjstrslo. without the
Intervention Of jsry. the PeUal,y mentioned in
this bod Seail b. iUyleilsd, ani the heeuse %
the slid, this tay granted. shall be voij.
On the lltA day 81 February. lST6,a eo1-
pl2iHt vas made sgainSt these appellants 10 Tor
lett this bond On The ground that they had in-
Cared forfeiture. BY The puneipals committing
an assault aud battery in bis house aud By sell
Oa this eonplai1t. bearing being had the ap-
pslaus, IN this case, Glover vas io0Rd 10 have
eo-miilei the OEsuses and his Heeass was ~
y0Ssd, and bis boad declared forfeited in the po-
IKE court 81 Hccoialu-
On the reodition ct this Judgment. the re-
sp0Hisu,s offered 10 appeal generally 10 the Sn-
pgsme Coart, bu. general appeal vas refused.
thoaSh the court did esr,liy appeal IN the t0l-
leSing Eords -
ksre5y esrtify that on tue 10Th Jay Of
FeeFuSry. 1876 I ssudersd Il judgment in avOr
Of the PlaiHtif in the above entitled cause. for
the sun Qf one thouaud dollars, being the
amount of the penalty aamsd in the toud upon
which this action Uas brought. together with
$40 costs, aud did order aud adjudge the L.
cease 10 ensure the performance Of tue eOnli-
ti1us of which the SAID o1nd given. 10 be for
fsitsi and void and Of no sfFeet; aui that an ap-
peal from the sad juiguent vas duly noted BY
the said ID. W. Clover. and J. ;. Smithies,
10 the Supreme Court in Blueo, ard that the
said appeal hss since been duly perfected accord
ing 70 laS.
tiivea under ny hand this 18th day Of Febru-
arr, \. y. 1876.
(sigledJ VIC. Joyrs.
Police Justice Of IIonuialu."
Tie defendants excepted 10 the refusal to al
los the repeal generally aud noted The following
exceptions 10 tue holding Of the Magistrate
That the police court srred in uOs certify
ing an appeal Tor trial By jury.
a-last the statute 0u shieh the said pro-
esediEgs were bEOueht aud the said judgment
giTsa-is Unconstitutional anu void
3--fhll plaintiffs declaraii0a shows no suai-
Gent eanss Of actiOu and Is otherwise defective
and Insufficient 1t aE.
4.-Ihas the bond Is void for uncertainty. and
because tie conditions thereof were made under
dgress ard eoasIraiaE-
Tnis kst gr0aui Vas abandoned st the hear
ing.
Ii Is urged that the appeal viii lie. uOtEith-
standing the clause ia the bond to the effect that,
= gp0l proof being made 10 the satisfaction OF a
common magistrate, BlthOat the Intervention Of
: J1ry. the psually ueuti0uedsin this boLd shall
be forfeited because the statute which alone
gave the jurisdiction, gave it subject 10 appeal
Bat the statGte which gives the Jurisdiction is
the 4lss chapter. section %. Of the Penal Code,
zhieh sets forth the form Of the bond. Now
this statute, while investing the common magiz-
trats With the jurisdiction 10 sach cases, does not
giFs any right Of appeal, bet seemingly denies it
oat it Is saId that the SD chapter, section g. OF
the Penal Code gives the right OF appeal and
that sGeh ughI Is recognized N Minister u In
fsTi0r rS. RitS0E, 81 Hawaiian reports. The
sIaluis referred TO- reads q follows -. That the
several police aud district justices throughout the
ki1Si0m shall have Jurisdiction to hear and de-
teruins subject TO appeal, all complaints for any
Ti0IatIoa Of the license lass. without limit il re-
sPect to the amoa0t OF penalty TO be imposed for
such Ti0lsti0as-' Ibis statute, which Is general /
IN its tsrs. does not give right OfaPPeal 10 the
despite Of say particular enactment
Il l. said that the condition in the bond to I
ABIDE by the Judgment Of a common magistrate /
sith0ui The Intervention Of the jury Is 4 mere (
couseat and el1aoi gre jurisdiction To the court
Bat It L Tot the consent Of the party ~ the bond
=hich gives the jlrisdisii0n. bat the stafute it.
self Of which the form Of the bond constitutes
part.
IL the case Of the AfHisss7- of I7fsri0r rs Ri /
s0H- referred 10 above. 1t appears that the then 1
Aitorue5-Gsaersi eouisnded that the boud had 4
s0t the force Of statute. bat the court sad that
The - band i material part Of the enactment. 4
md. c0nfsrs rights o. parties which the Judi
;izl authority mast regard. and again uhen ze
lake iuto Consideration the e7sl0ngsd js1isliai0E
u the ooMHI5H Magistrate upon qgestiOns Of this
shzFSeier, Il eO1forIs 70 the symmetry Of our
sgizi1tars 20 give this construction 20 the b0nd.
has Il vii BE- seen that Is i the statute ard not
he consent Of the PARTIES which gave the CON-
zoa magistrate The enlarged jurisdiction.
IL = true that the f0ii5EIuZ sentences occ1rs in
Es zane case. There Is : rghs Of appeal, bat
q eases Ehsre the proof Is positive this right
s01if do1bil=ss be zsiEed 70 save expense"
Bat O. aa examination of all the pagers II does
los appear that thIs remark vas connected With
.1y po.ni rzi.sl IL the case, and 10 the opinion
szsIf. Il appears 70 Be merely incidsntai remark
AZ O5itsT dizlzs-1ot haviag any weight Is
Iscisi0a o. intecdsd 70 have sgeh weight.
Sections sgs AID 905 are referred 20 by appel
ATS co1nsd- We Do not see the application
{ section s93. TIE secfien 800 reads a. f0lloEs;
- Neither q the said justices shall have pozer
0 deteF7ipe aoY ciTii natter required b. lzs to
: iried b. jsFy, uor 70 appoint referees 10 any
a1se-' Bat 20 fsT fron the IsE requiring cases
isis a-ssTs % Be tired b. > jary. i prohibits
hen fF0n being 30 tired Oa looking over the
seor5s q he c0srt and examining al the cases.
zPpezz that sol3e d them we're tTisd by igry
Y aPps1L Bat It does not appear that the
oi1E q tie night 70 s1ch trial vas eser raised
j those ezses-
Tie Consutstioa. 1850 article ,. ssys that
In al eases, IN Vhieh tIisl By j1Ty bss been
sEetofore nssd, Il shsil Be bed inTi0isbls for
se-." etc Tie eo1s,it1iioa q le52 shieh Eas
lpescs1sd b that q Is64, contains tie sane
FoTIsion-
Bat the lzz under consideration has been 10
pe-ztio1 n this co1at-y since 1876. So that
: AZ yeG1 before the pronaIzztioH d the con
iisiion Ct Ie5z, trial b. jay bad not been
I'd n eases siniizz 70 this, znd the i1ry had
sEeT 10 poInt q Ezct been 1ssd Tor trials 81 this