The Hawaiian gazette., 1894-04-20
OPINION OF THE COURT BY FREAR, J

corpus OF behalf OF Iokeshlta MatsuIl.
a contract laborer, who was alleged
to DE imprisoned upon default Of
payment Of fine illegally imposed
on him by the District Magistrate of
Waimea, Kauai, for wilfully absent
ing himself from service. The alleg-
ed illegality consists in this, that the
sentence, which is for a first otfense,
imposes a fine of the amount pre-
scribed by the statute for second
ofense. The Circuit Judge refused
the application on the ground that
he had no jurisdiction to issue the
writ in such cases. The question
presented to rs upon this appeal is
whether he had such Jurisdiction.
By Sec. 2 of the Act Of 1870
Relating to the Writ Of HGJeaS
Corpus" the writ is rot demandsble
of right by persons convicted, or in
execution upon legal process, civil or
criminal" By Sec. 30, Nothing in
this Act shall be construed 10
restrain the power Of the Supreme
Court, or any justice thereof, at their
discretion to issue L writ of dajsas
corpus, ad Su3jicieadum, in case where
it is not demandable Of right <
i. But such discretionary power
shall only be exercised by the Justices
of the Supreme Court" 1t is
clear that under this Act, a Circuit
Judge could not issue the writ
where, as in the present case, the
prisoner was convicted and il cxecu-
ton upon legal process.
But by Sec. 81, subdivision s, of
the Act of 1892, ITO Reorgsnize the
Judiciary Department" Circuit
Judges have power "To issue writs
of da5eas corpus according to law"
Counsel for the petitioner contends
that this Act gives 10 the Circuit
Judges the discretionary power
formerly exercised by the Supreme
Court Justices, and that the words
according to law" relate to the pro-
cedure or manner, and not to the
class of cases, provided by law. For
otherwise, it is argued, why repeat
or affirm such restrictive legislation?
We cannot agree with counsel.
Prior to the Act of 1870, the
Supreme Court Justices and the Cir
cult Judges were given In general
terms power to issue writs of hdbeGS
corpus Civ. Code, Secs. S55, $50.
Neither the pFQcs dure Dor the class
of cases il which the Justices and
Judges might respectively issue the
writ was defined by statute. This
was done by the Act of 1870 which,
among other thipgs, confined the
power of the Circuit judges to cases
in which the writ was demandable Of
right. The Act of 1892 is compre-
hensiye act, designed not merely 10
amend some old, and enact some new
provisions of law, but also to consoli-
date and arrange Systematically
many scattered provisions of former
laws relating to the judiciary 1t
consequently repeats much old law
of both a general aud restrictive
nature; and in its enumeration of the
powers of the Circuit Judges, its re-
petition of the power to issue writs
of habedS corpus as we'll as other
powers given formerly by the Civil
Code, is easily explained without the
necessity of attributing to the legis-
lature an intention to alter the law
of 1870. Just as the former general
provision of the Code was controlled
by the special provision of the Act of
1870, so is the present general prov
ision of the Act OF 1892, which is
substituted for the former provision
of the Code.
To support counsel's contention we
should be obliged to hold that the
Act of 1892 repealed by implication
Sec. 81 of the Act of 1870. But re-
peals by implication are not favored,
"a rule particularly applicable in
this instance, for the reason that an
attempt was apparently made in the
Act of 1892 to repeal expressly all
former laws intended to be repealed
and for the further reason that one of
the alleged inconsistent clauses is of
a general nature and the other of a
special nature. "a general later
(affirmative) law does not abrogate
an earlier special one by mere impli-
cation" Endlich, Interpretation Of
Statutes, Sec. 223. ''If there are two
acts, or two provisions in the same
act, of which one is special and par
ticular, and clearly includes the mat
ter in controversy, whilst the other is
general and would. if standing alone,
include it also; and if, reading the
general provision side by side with
the particular one, the inclusion of
that matter in the former would pro
duce a conflict between it and the
special provisiou,-it must BE- taken
that the latter was designed as an
exception to the general provision"
Id. Sec. ZIG See also Sec. 399
This rule was followed in Manaku v.
s ihaw. 3S1, where gen
eral statute passed in 1872 vas held
not to repeal special one passed in