The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-06-29

e before JUDD, ". d. DICK EKION anu
FREAR, j. j.
OPINION OF THE COURT BY FREAR, J.
The prisoner is held by the marshal
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 as
in the foregoing affidavit" The affida-
Wit is that of T.. CT. 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, cat said Honolulu within three
months last past were guilty of the
crime of conspiracy, by maliciOnsly
and reasonably cOnspiring and con-
certing together, and conspiring and
concerning with others to the affiant
unknown to overthrow, and put down,
and destroy by force the Provisional
Government of the Hawiian 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 3, act 8, of the
Provisional government, being an act
ito amend chapter 6 of the penal code,
relating to treason"
Counsel for the prisoner contends
that the prisoner should be discharged,
because Cd 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 is void under article "
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 (3) 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 adj
judicata. This court has held that
the executive and advisory councils
possess general legislative power by
virtue of the proclamation of January
u, 1898, and not by virtue of act 4. In
re Sheldon, decided March 81, 1898;
Provisional government VS.. Herring,
decided June %, 1898.
AS to the second point, the reason
for requiring that "every law shall
embrace but one object, and that
shall be expressed in its title," is, as
expressed in Article a itself of the
Constitution, ''to avoid improper in
fiuences which may result from inter-
mixing in one and the same act, such
things as have no proper relation to
each other" The improper results to
be avoided are, principally, 'shodge
podge," or "log-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 ''no proper relation to each
other" If, therefore, looking at the
reason stated in Article "a itself, the
things covered by the law have a
proper relation to each other and
these are fairly well embraced in one
object, however general, and eX-
pressed in the title, it is sufficient.
This provision of the Constitution
should be literally construed. TIC
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):
isThe general purpose of these pro-
visions is accomplished when law
has but one general object, which is
fairly indicated by its title. To re-
quire every end and means necessary
or convenient for the accomplishment
of this general object, to be provided
for by separate act relating to that
alone, would not only be unreason-
able, but would actually render legis-
lation impossible. "The
generality of title is therefore no
objection to il, SO long as it is not
made a cover to legislation incongru-
Gus in itself, and which by no fair in
tendment can be considered as having
necessary or proper connection.
The legislature must determine FOL
itself how broad and comprehensive
shall be the object of statute, and
how much Particularly shall be en-
ployed in the title in defining it,"
'TThere has been a general DISPOSE.
ton to construe the constitutions
provision literally, rather than tC
embarrass legislation by construc
ton whose strictness is unnecessary
to the accomplishment of the benefi
cial purposes for which it has beer
adopted"
The courts of California and Ohit
even go so far (too far, we think as t.
hold that such provisions of the con
stitution are merely directory and no
mandatory at all. Washington VS.
Murray, 4 Cal, 3sS; PIN. VS.. Mich
olson, 6 oh. st. Ia. In O'I4eary VS.
Cook Co., % ILL.,, 534, cited with ap
prevail by Judge Cooley, it was he'll
that clause prohibiting the sale o
ardent spirits within four miles of
college was so related to the primar
object of an act incorporating the col
lege as to be properly include
Within it.
1t is unnecessary to consider Sec
tions 6 and of Act 5, for, even if the
are not fairly within the object of tn
Act as expressed in it's title, tina
would not affect the constitutionalit
of the rest of the act. Cooley Cons