The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-04-23
OPINION OF TIE COURT BY FREAR, J

OPINION OF TIE COURT BY FREAR, J.
Application was made to the Cir
cult Judge of the Fifth Circuit by
X. Okkots. Inspector of Japanese
Immigrants. for a writ of ha6eGs
corpus on behalf of Tokeshita Matsuji,
a contract laborer, who~was alleged
to be 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 illegaiity consists In this, that the
sentence, which is for a first offense,
imposes fine of the amount pre-
scribed by the statute for a second
offense. 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 as npon this appeal is
whether he had such jurisdiction.
Bv Sec. 2 of the Act OF 1870
Relating to the Writ OF Habeas
Corpus" the writ Is not demandable
of right by persons convicted, or In
execution upon legal process, civil or
criminal" By Sec 81, Nothing in
this Act shall be construed TO
restrain the power of the Supreme
Court, or any justice thereof, at their
discretion to issue writ Of ha6eas
corpus. ad su6jiciendum, In Case where
it is not demandable of right 3
*. But such discretionary power
shall only be exercised by the Justices
of the Supreme Court" 1t is
clear that under this Act, Circuit
Judge could not issue the writ
where, as in the present case, the
prisoner was convicted and In execu-
ton upon legal process.
Bnt by Sec. 81, subdivision s, OF
the Act of 1892, 'sTo Reorganize the
Judiciary Department" Circuit
Judges have power ITO issue writs
of habeas corpus according to law"
Counsel for the petitioner contends
that this Act gives to the Circuit
Judges the discretionary power
formerly exercised by the Supreme
Court Justices, aud 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
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 hd6eas
corpus. Civ. Code, Secs. S55, SS3.
Neither the procedure nor the class
of cases in 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 things, confined the
power OF the Circuit Judges to cases
In which the writ was demandable of
right. The Act of 1892 is compre-
hensive act, designed not merely to
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 and a restrictive
nature; and in its enumeration of the
powers of the Circuit Judges, its re-
petition of the power TO issue wits
of hdbeds corpus as we'll as other
powers given formerly by the Civil
Code, is easily explained without the
necessity OF attributipg to the iegls
lature an intention to alter the law
of 1870. Just as the former general
proyision 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 10 hold that the
Act of 1892 repealed by implication
Sec. 80 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
special nature "a general later
affirmative law does not abrogate
an earlier special one by mere impll.
cation" Endlich, Interpretation OF
Statutes. Sec. 223. eff 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,
incIud. it also; snd 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 1t and the
special provision,--it must be taken
that the latter was designed as al
exception to the general proVisio Ono
Id. Sec. ZIG. See also Sec. o99
This rule was followed in Manaku v
Moanauli, 8 Haw. 381, where a gen
eral statute passed In 1877 was heic