The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-03-19

ure which would deprive him of
them it is void. 1t is not left to
the discretion of prosecutors or mag
istrates to adopt a course of pro-
cedure which may or may not be in
conformity with the requirements
of the Constitution as they may
elect" The term "rightS " i'm
plies as much as this: The seizure
and immediate confiscation and de-
struction of perishable articles Of
fered for sale or going to places of
sale which are in an unfit condition
for use, is an obvious and necessary
exception to the principle which
requires notice and opportunity of
defense.
The case of Trick Us. anderson,
81 Cal. 251, strongly pronounces
that confscations without a judicial
hearing and judgment, after due
notice, are void, as not being due
process of law. Judge Cooley in
his Constitutional Limitations says,
ono man can by his misconduct,
forfeit his property unless steps are
taken to have the forfeiture de-
clared in due judicial proceedings.
Forfeitures of rights or property
cannot be adjudged by legislative
Act; and confiscations without
judicial hearing and judgment after
due notice, would be void, as not
due process of law"
This doctrine is not and cannot
be controverted. But the argument
is that there hes been a hearing in
in this case, that the Court heard
before it condemned, having taken
oral testimony to support the evil
dence of its own eyes, by the in
spection of the packages then being
in court, that so it proceeded upon
inquiry and rendered judgment
only after trial. Who was heard?
Not the owner of the property pro-
ceeded against. The statute makes
no provision for citing, notifying
or hearing him. All proceedings
in rem require so much. To call
this hearing when the party in
interest cannot be heard is a use of
the term which is fallacious.
These principle and authorities
require us to hold that the pro-
visions of this Act which authorize
the seizure of property without a
legal method of proceedings in con-
demnation, and the condemnation
without due process of law are in
conflict with rights secured by the |
Constitution, and SO the statute to !
the extent found to be unconstitu-
tional is to that extent void. Sec
ton 5 is therefore pronounced void. |
If there are other portions Of the
statute not dependent upon those
parts which are here adjudged to
be unconstitutional, they are not af- |
fected by this determination.
Warren Us. Mayor etc. of Charles
torn, , Gray SO.
LIZ SSSOuu pOIuI III llIS SuUullS-
sion concerning the jurisdiction of
the Police Court to entertain such
proceedings, it does not seem neo-
essary to consider in view of the
conclusion that they would be I'M
constitutional without respect to
the Court in which they might be
brought.
The submission praying that the
Justices of the Court, or majority
of them, if the Judgment of the
Police Court be found to be illegal
or erroneous, may render a judg-
ment appropriate to an action of re-
plevin for the goods, we hereby
adjudge that the plaintiffs herein
do have and take the goods here
tofore declared forfeit with their
lawful costs.
Acknowledgement Ashford y.
S. Hartwell for defendants.
Honolulu, January %, 1887.