The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-05
CONTEMPT OF COURT.
It's DEVELOPMENT in the Hawaiian ISL
ands-Was the Attorney GeneraPs
Imprisonment Legal?
Communicated

Communicated
The power given to judge to punish
for contempt of Court" is the most sum-
mary and arbitrary power now allowed
in any Tree country. The judge IS con-
stituted Judge, jury and prosecutor. he
makes the charge, files a verdict OF
guilty and passes sentence on the victim
and, in this country, allows no appeal
from his decision. 1t is plain that their
power should be exercised with the
utmost care, consideration and modera-
ton; otherwise it may become IN the
small-minded man the engine OF per-
sonaI spite. This is a power which has
always been jealousy regarded IN Eng
land and especially SO in the United
States, and is used only IN extreme
cases.
In this country it for long time was
used in the same way, but since the
incumbency OF the three senior members
of the present Supreme Court, Messrs.
Judd, Preston and McCully, change
has come over the spirit of the Courts
dreams, and worn out theory known as
constructive contempt" was adopted
bv the Hawaiian Supreme Court. This
theory was that any adverse criticism
unon the Court or its proceedings which
had taken place in open Court, prior to
rendering Of the final decision by the
final Court of Appeal, could be by the
Court construed" into contempt, If the
| presiding Judge chose in his arbitrary
| Judgment to SO consider it. The Court
eliminated their approach to this ex-
IRENE position in the "Congdon" case.
In this case some old lumber fell down
on and killed some pigs that were being
| brought to Honolulu from San Francisco.
The consigners claimed damages from
the ship, and brought suit for the same.
A statement Of the plaintiffs case was
| printed in newspaper. Some OF
the facts published were denied by
| the defendant and he accordingly
published his version of the story.
The Court thereupon found the
newspaper which published the de-
fendant's statement guilty of contempt
of Court The final straw which was
put upon the back OF the constructive
contempt" camel arose out of the case
OF Smith, Thurston and Kinney vs.. l..
Aholo, Minister of the Interior. The
plaintiffs filed bill in equity claiming
that the Minister was corruptly and
fraudulently disposing and attempting to
dispose of Government lands in a man
ner prohibited by law and prayed for an
Injunction to prevent him from so doing.
The injunction was issued. The ADvER-
TIsER published copy of the bill filed,
making no comment. The Court held
the Editor, guilty of Constructive con-
tempt" This injustifable interference
with the freedom of the press brought
it's own cure, for the Legislature of 1888
by an almost unanimous vote passed a
law prohibiting the Court from further
exercising any such power.
The latest development of arbitrary
power on the part of the Court is the
action of Judge McCully in the case OF
the Attorney General. The principle in
volved in this case is far more important
than are the facts of the immediate case
out of which it arose.
The Attorney General claimed the
right to nolle pros. criminal case, and
to refuse to present to the Court any
criminal case if he so chose. The claim
of the Attorney General is strongly sup
ported by English and American authori-
ties. Although thus supported, Judge
McCully issued peremptory order
which was served on the Attorney Gen
eral at p. M, to show cause at 10 the
next morning why he should not be
punished for contempt. The Attorney
General made return to the order ex-
pressly disclaiming any intention of dis
respect to or contempt of the Court
reiterating his claim of his legal right, but
stated that he considered it for the public
interest to proceed with prosecutions
and did so. Notwithstanding this, Judge
McCully's wrath refused to be appeased
and he demanded a retraction OF the
claim made by the Acknowledgement
and an apology; failing to get this he
sentenced the Acknowledgement tc
twenty-four hours imprisonment. The
contempt alleged by the Judge was that
the Attorney-General refused to proceed
to prosecute. The Attorney-Ge still
claiming his legal right to refuse, pro-
ceeded to prosecute. If there are reput-
able authorities sustaining the claim OF
the Attorney-General, what right has
Judge McCully to say that he is guilty
of contempt of Court" for asserting that
claim. Doubly what right has Judge
McCully to say that he is guilty of con-
tempt after he has abandoned his inten-
ton to act under his claim, simply be-
cause he refuses to retract his claim and
apologize. The conclusion is irrisistable
that it was "McCully" and not the
Court" that was acting when the SEN
tence was passed. If the Attorney-Gen-
eral should persist in refusing to prose.
cute criminal cases, he would be doing a
great wrong, but how is he guilty OF
contempt of Court?" Are all wrongs
contempts of Court? It is not the bust
ness of the Judge to prosecute. That is
the business of the Attorney General.
1t is the business of the Judge to ex-
pound the law governing cases brought
before him. Ii the Acknowledgement
does not perform the duties of his office
and the Court can declare it CONTEMPT
of Court" there is no limit to the Courts
power. 1t can arbitrarily say: thus and
SO is contempt of Court. To prison YOU
shall go; and there is no appeal. Ii
this is to be allowed, who is safe.
Even if there had been an actual con-
tempt committed, some decent regard
for the dignity of the Office of Head of a
Department of the executive, might
have been expected in this case. We
understand that it is the opinion of a
large number of the members of the bar
| that the Attorney-General would have
been legally justified in disregarding the
Judges order of imprisonment. and the
community has to thank the Attorney
| fAr l..