The Hawaiian gazette., 1891-03-03

OPINION OF THE COURT By JUDD, c. D.,
M'CULLY, J., dissenting.
On the sworn information of the
Attorney General the respondent
was cited to appear before the Court
to show cause why he should not be
adjudged guilty of a contempt OF
Court for the publication of an srtl-
Gle in a newspaper published IN
Honolulu called F" ka Leo ha La
hui" in It's issue of February 9TH
instant.
On the I1th of February respond
ent moved that the rule be discharg-
ed on the grounds:
i. The act complained OF IN the
petition upon which said rule Is
based, Is not in law, a contempt of
Court for which this Court has
power TO punish this respondent.
-. This Court cannot legally
punish as for a contempt a pubhca-
ton of the nature of that herein
complained Of made in a newspaper
and not done IL the immediate pres
ence of the Court.
-. No publication out of Court
In relation to the Court OF to any of
Its individual members amounts, IN
law. to d contempt and the same
cannot be punished as such.
4. 1t is nowhere alleged or init
mated in said petition or IN the rule
issued in pursuance thereof, that
said publication was made while this
Hon 0rable Court was sitting as such,
nor that said publication was de-
signed. OF calculated, or had any
tendency to obstruct, embarrass or
prevent the due administration OF
justice.
-. If this respondent were in fact
the publisher of, or legally respon-
sible for said publication, which he
doth in no wise admit TO be true,
then such fact and offense involved
therein. are matters concerning
which this respondent is by the Con
stitution and the statute law entitled
to a trial by jury of his peers"
BY THE COURT.
The Legislature OF 1888 enacted
that thereafter constructive con
tempts should not be punishable as
such. 1t is claimed by the attorney
for the respondent that the publica
tion of the article in question, if
contempt at all. Is a constructive
contempt and is therefore not pun
ishable
Contempts are generally divided
by iurists into the classes of direct
and constructive; direct being those
committed in the presence of the
Court and constructive being those
acts which the Court would have to
cOnstrue by some process of reason
ing to be equivalent to direct con-
tempt. But the authorities agree in
the main that in order to sustain the
character of a constructive contempt,
the publication must have tendency
to obstruct or hinder the progress of
justice IN some particular case.
Were we to proceed alone upon
the common law, the contention of
the counsel for respondent would
seem to be sustained by authority.
But we have q statute which, so
far as We have learned, is peculiar to
this country, aud which describes
and enUmerates certain acts and cir
cumstances as contempts and makes
them punishable upon indictment
and conviction by a jury and also
sUmmarily. These acts are not CLASH
fed IL the statute as direct and con
sTuctiye contempts. Some of these
acts would fall under one head and
some under the other as generally
classified. By our penal law, how
ever, they are all contempts and pun
ishabie either summarily or upon in
dictment or IN both ways.
The Legislature IN euacting the
law of 1888 had IN mind, without
doubt. the then recent cases decided
by this Court IN which certain pub
locations, ayowedly not Of the char
acter enumerated in the Penal Code
as contempts, We're construed by the
Court to be contempts, and these the
Legislature declared TO be no longer
punishable as such. The first and
third sections OF the act of 1883
strengthen this view.
clares IL substance that certain JUS
tices Of this Court now in office are
guilty Of an unexplated crime, and
are therefore unworthy to sit III judg-
ment upon others, thus attacking the
Justices IN the exercise Of their Judi
ciai functions. This language fits
exactly the words Of the statute. 1t Is
publishing Of malicious inYectiyes
against d Court tending to bring
such Court (and) or the administra-
tion Of justice into ridicule. con-
tempt, discredit or odium.n We
override the motion to discharge the
Rule
Respondent &c answer.
Attorney General Peterson for
Rule; CIV Ashford for Respondent.
Honolulu. Feb. %, 1891.
DISSENTING OPINION OF N'cULLY. ].
The statute authority for treating
this publication as a contempt of
cOurf l. tine clauSe in SecfiOn Is Of