The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-07-11
opINIoN OF THE COURT BY FREAR,

The prisoner is held by the Marsha
under a warrant of arrest issued by The
! District Magistrate of Honolulu, in the
usual form, commanding the Marshal
to arrest the prisoner and two Others
/ "accused of the crime of conspiracy rs
! in the foregoing affidavit The affida.
Wit is that of E. G. Hitchcock and is in
/ the usual form upon the same sheet Of
paper and Just above the warrant OF
arrest, the affiant swearing that the
defendant and said others, naming
them, sat said Honolulu within three
months last past were guilty of the
crime of conspiracy, by maliciously
and reasonably conspiring and con-
certing together, and c0nspiring and
concerning with others to the atfiant
unknown to overthrow, and put down,
and destroy by force the Provisional
Government of the Hawaiian Islands,
and to levy war against said Provi-
sional Government, and to oppose by
force the authority of and by force to
seize, take and possess certain prop
erty of said Government, to wit, the
government building, now occupied
by the Executive Council of said Gov
eminent, contrary to the authority of
the same" using substantially the
language of Section 5, Act 8, of the
Provisional Government, being an act
''To Amend Chapter 6 of the Penal
Code, Relating to Treason"
Counsel for the prisoner contends
that the prisoner should be discharged,
because a. the Executive and Advis-
DRY Councils of the Provisional Gov
eminent had no power to pass Act 3
prior to the passage of Act 4, which
provided among other things that the
two Councils should act Jointly in the
exercise of general legislative powers;
and (2l Act 3 is void under Article n
of the Constitution of 1887, which pro-
vides that .'every law shall embrace
but one object, and that shall be eX-
pressed in its title" inasmuch as the
title of Act relates to treason only,
while Section ) relates to conspiracy,
and Sections and to other offenses;
and CO. because the warrant does not
set forth with sufficient particularly
the offense for which the defendant
was arrested.
The first of these points is res dd-
judicdtd. This court has held that
the Executive and Advisory Councils
possess general legislative power by
virtue of the Proclamation of January
Il, 1898, and not by virtue of Act 1. In
re Sheldon, decided March 81, 1898;
Provisional Government VS.. Herring,
decided June 81, 1893.
AS to the second point, the reason
for requiring that ''every law shall
but one object, and that
shall be expressed in its title,n is, as
expressed in Article II itself of the
Constitution, "to avoid improper in
fuences which may result from inter
mixing in one and the same act, such
things as have no proper relation to
each Other.n The improper results to !
be avoided are, principally, hodge |
podge,n or "1og-rolling" legislation,
surprise or fraud upon the legisla- |
ture, and concealment of the subjects |
of legislation from the people, Hy-
man Bros. VS.. Kapena, Haw. as. |
The evil producing these results is
the intermixing of such things as
have mo proper relation to each |
othern If, therefore, looking at the |
stated in Article II itself, the |
things covered by the law have a
proper relation to each other and |
these are fairly we'll embraced in one |
object, however general, and ex-
pressed in the title, it is sufficient. |
This provision of the Constitution |
should be literally construed. To |
construe it strictly would, by ham
pering legislation, cause as great evil
in one direction as was intended to be |
prevented in the other direction. |
Says Judge Cooley (Const. Linn, PIP.
IA, 146):
"rhe general purpose of these pro-
visions is accomplished when a law
mas but one general object, which is
fairly indicated by its title. To re-
luire every end and means necessary
1r convenient for the accomplishment
Of this general object, to be provided
'or by separate act relating to that
alone, would not only be unreason-
lble, but would actually render legis-
alton impossible. The
of title is therefore no
objection to it, so long as it is not
made cover to legislation incongru-
Jus in itself, and which by no fair in
iendment can be considered as having
| necessary or proper connection.
The legislature must determine Tor
tself how broad and comprehensive
ihall be the object of statute, and
low much particularly shall be en-
)loyed in the title in defining it.
There has been a general DISPOSE
ion to construe the constitutional
provision literally, rather than to
,mbarrass legislation by construc-
ion whose strictness is unnecessary
o the accomplishment of the benef-
.ial purposes for which it has been
ldopted."
The courts of California and Ohio
wen go so far (too far, we think as to
lold that such provisions of the con-
are merely directory and not
at all. Washington VS..
Murray, 1 Cal, 3SS; PIN. vs. Mich
,lson, Oh. st. III. In OiLeary VS..
look Co., IS ILL.,, 534, cited with APP
,roval by Judge Cooley, it was held
hat clause prohibiting the sale of
lrdent spirits within four miles of a
college was so related to the primary
'bject of an act Incorporating the col
ege as to be properly included
within it.
1t is unnecessary to consider Sec
ions and Z of Act 5, for, even if they
re not fairly within the object of the
Act as expressed in its title, that
would not affect the constitutionality
# the rest of tho Act Coolax- Comet