The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-12

tons to Quash or demur.
The Courts approval OF the bill as
being founded on evidence in no wise
Identifies the Court with the prosecution.
l say this without hesitation on the part
of every Judge living and dead VINO mas
occupied this Bench.
Examining the statutes previous 10
| those now in existence-aDoVe reieI
red to-the first is the statute OF
| 1916 which organizes the executive de-
partments. and by which the office OF
| Acknowledgement was first constituted
and his duties prescribed (pages 264 ct
seq, Section WILL, prescrlbes tnat
every prisoner committed for trial snail
be arraigned upon an indictment al
| lowed by the Judge. ana toec-
ton *. after plea the said Attorney
General shall. unless postponement pe
granted for cause by the Court, proceeu
to make good by proof all or any OF the
counts in said Indictment. So 1t appears
that the Attorney General had not the
sole and exclusive control, now claimed,
of the prosecutions, for he could not con-
tinue case unless by leave OF the court
granted for cause shown. An absolute
power to continue case, without cause
shown and without leave, is equivalent
to power to continue and not prosecute
at all. This he had not, but was COM
manded by the law to prosecute.
In a single instance under this statute
was the power given to the Attorney
General to enter nolle prosequl.. Sec
ton Ill "When writ OF habeas
corpus shall have been issued by any
Court of Justice, to inquire by exam1na-
ton of witnesses into the cause of the
legality of the imprisonment OF any al
leged DELINQUENT or criminal awaiting
his trial the Acknowledgement
shall attend to see that the alleged de-
: linouent or criminal be not enlarged
without lust cause. He shall represent
the prosecution in all such cases and he
may, when the public interests require
it, enter nolle prosequi against sus-
, pected person" This statute is nearly
equivalent to the statute of 1876 above
cited. The rule of expressio unlus est
5 exclusio alterius well applies here. The
t authority is given expressly in defined
4 instance, viz: of preliminary inquiry
s for commitment and is not given other
wise. The instance allowed is of a case
8 not vet under Indictment found. The
n general mandate of the law is that the
t Acknowledgement shall prosecute.
g BY joint resolution Of the Legislature
}. in 1876 subsequent to the passage of the
r organic acts in the same year, authority
S is given the Cabinet to appoint other
e public prosecutors, and to the Judges Of
n the Superior Court to appoint district at
1t torneys, pending the appointment OF a
l. new Attorney General-th then At
If torney-General, Mr.. Ricord, 1t appears
n was about to leave the kingdom and his
e office was not filled.
It In 1859 Civil Code, Sections 1880
= 1095) the law provided only for distric
= attorneys, an Attorney General not being
t. constituted by the Constitution of 1852
IT These district attorneys were appointed
d by the Justices of the Supreme Court fol
l. each judicial circuit of the Kingdom
l. They gave bond to the Chief Justice
Is they were commissioned for the term o.
two years, unless sooner removed by th'
e Justices of the Supreme Court. They
N were required to prosecute ofenses with
Or diligence. No mention is made of {
8. right to nolle prosequi.
ye By statute in 1862 the system of hav
4, ing an AttorneyGeneral was restored
,e He was appointed by the King for
Sc term of two years unless sooner removed
in by the King His duties were prescribe
e. to be those which had been performet
I'd by the district attorneys in Sections 1880
t, 1895. No power is granted to nolle pro
IS seoul.
ly BY the Constitution of 1864 an Attor
N ney General was established, and he wa
te made member of the Kings Cabine
IN art 42) and in 1868 an Act was passe
Or defining his duties. 1t is almost through
t. out in the same words as the Act of 1867
IN His duties are again referred to Section
b, 10S0-1095. The Act would seem to hav
OF been passed solely to state his positio
he as "being appointed by virtue of an al
We ticle of the Constitution, but althoug
thus placed for the first time under th
re Constitution and made member of Hi
he Maiesty's Cabinet, his duties in relation
r. to prosecutions, and his status, rights
or privileges and powers in the courts ar
v unchanged from those of the officer VIII
he was created by statute only.
ne From this review of all the statute
n touching the rights and duties of tn
e. Attorney General, am of the opinion
e. that the procedure which [ have state
of to be the custom of the Court and of tn
V. Attorney General, is in accordance wit
I'd our law, and accords with the interpre
s. tation hitherto given by the Court an
Id the Attorney-General.
| It is we'll established precedent Q
IT. practice based on the law. | cannot Sc
he it aside. Ii it does not now and furthe
IS. COuuuGuu IISoIl GLI0 Legislature eau 0UaC
u statute authorizing another procedure
he The counsel for the Attorney-Genera
le says in argument: eff the judicia
n power can be extended to requiring tn
III Attorney-General to prose
at cute any specified case on penalty of fin
to or imprisonment this would not permi
er the exercise of executive and judicia
r. powers to be preserved distinct-it woul
r. annul the discretionary and volun
tary exercise of executive power
le so far as the Attorney General is con
lie cerned." This in my view is a misar
,r prehension of the matter in discussion
lie The Court has not ordered the prose
b. cution of this case. 1t cannot and it vii
ly not do so. 1t has simply refused t
to approve and allow motion for noll,
De prosequi upon the reason stated.
Id It has not and will not "fine or i'm
prison an Attorney General for con
lg tempt by reason of not prosecuting
,. case.
ID 1t will be observed that l do not agre
e in terms with the statement in the open
e. ing of the argument of counsel-"Th,
of Attorney-Generalb having mol. pros'd tn
to case the Court said it's con
It sent was required which it refused t.
10 give"
N The Court said it would take time t.
If consider (the reason offaredl and