The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-11-01
IMPORTANT OPINION
By ATTORNEY GENERAL
E. P. Dole Says Fishing
Rights Since 1S46
Are No Good.
DECLINES TO PRESS CASE YESTERDAY
PARALLELS THE OLD LAW WITH
PROVISIONS OF ORGANIC
ACT.
DECLINES TO PRESS CASE YESTERDAY
Case That vitaIIy Affects Ali Fishing
Rights in the Islands, Except Pri-
vate Ponds, and Those Granted
Prior to 1886.

In the Circuit Court yesterday At
torney General Dole surprised court
and counsel by entering a nolle prose
qui in the Kaneohe fishing rights case.
The case is small one and, in itself,
of little moment but it involves the
question of the rights of every fishing
preserve in the Islands. Following
was the statement of the Attorney
General in dropping the case:
The interests which might be di-
rectly or indirectly affected by the
above entitled prosecution are so
great that | deem il best to state my
reasons in writing for asking that a
nolle proseQui may be entered, in or
der that the same may be matter of
court record.
The charge in said cause. originally
begun in a District Court, is as fol-
lows: Violating Section 1850 of the
Penal Laws of 1897 at Kaneohe. ISL
and of Oahu, Territory OF Hawaii, on
the 18th day Of April. 1901, by will
fully depriving the Konohiki of the
Ahupuaa of Kaneohe of his fishing
rights and by then and there willfully
appropriating to themselves tabooed
fish. to wit, Amaama. of said Kono-
h hi from the sea fishery of said Ahu-
puaa"
To this charge the following de-
murrer was filed:
Il That there is no law provided
for such an offense as the offense
stated in the charge, to wit, by will
fully depriving the Konohiki of Ka-
neohe of his fishing rights and will
fully Incorporating the tabooed
fish to themselves. to wit, the ANA
ANA.
-. 1t is net stated in the charge
fense-to have been committed by
the defendants.
IS. Your court has no jurisdiction
to hear a case of this nature.
"a All the laws relating to fishing
rights of Konohiki were repealed by
the Organic Act of the Territory of
Hawaii. Section 95."
The motion to dismiss was denied
by the District Magistrate.
The act of taking the fish was adj
mitted by the defendant. The record
of the District Court shows that he
pleaded guilty. but. taken in connec-
ton with the demurrer and the record
of the understanding of the attorneys
on both sides, the conclusion is I'M
ayoidable that he did not admit that
he had violated law
Upon this admission, the District
Magistrate sentenced the defendant to
paw a fine of one dollar and costs.
Cnoffanc &c 81 nrn1 n
Act are as follows:
That all the laws of the Republic
of Hawaii which confer exclusive fish
ing rights upon any person or persons
are hereby repealed. and all fisheries
in the sea waters of the Territory of
Hawaii net included in any fish pond
or artificial Enclosure shall be free to
all citizens of the United States. sub
jet. however. to vested rights; but
no such vested right shall be valid
after three years from the taking eff
feet of this Act unless established as
hereinafter provided That
any person who claims a private right
TO any such fishery shall, within two
wears after the taking effect of this
Act. file his petition in a Circuit Court
of the Territory of Hawaii. setting
forth his claim to such fishing right.
service of which petition shall be
made upon the Attorney General. who
shall conduct the case for the Terri
tory. and such case shall be conducted
as an ordinary action at law. That IL
such fishing right be established. the
Attorney General of the Territory OF
Hawaii may proceed. in such manner
as may be provided by law for the
condemnation of property for public
use. TO condemn such private right OF
fishing TO the use of the citizens OF
the United States upon making Just
compensation. which compensation.
when lawfully asceTtained. shall be
paid out of any money in the treasury
of the Territory of Hawaii not other
wise appropriated.
These sections abolish the exclusive
fishing privileges. excepting such as
are a matter OF vested right
Section OF Article Y OF Chapter vi
of the Session Laws Of 1916 provides
that: The fishing grounds from the
reefs. and where there happen to be
no reefs from the distance OF one
geographical mile seward to the
beach az iow-water mark. shall Ia law
be considered the private property Of
the landlords whose lands. By ancient
regulation, belong to the same. in the
of which private fisheries
the said landhoiders shall not be mo
Tested except 10 the extent OF the res
creations and prohibitions hereinafteE
set forth
This section has continued in force
for fiftr-1ve Years. unchanged by legis-
lation other than the Organic Act
Under this section. Il seems 10 me- a
vested right 10 an exclusive k0uohfki
fishing privilege must be founded upon
a regulation or user Of q land. ancient
and established as long ago As the
wear 1915 II seems TO me that all
exclusive fishing privileges in the
sea which we're ncf ancient and es-
tahlished in 1886 are without legal
Foundation.