The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-11-01
mo LEGAL.
FOUNDATION
Exclusive Fishing
Privileges
Invalid.
ATTY. GENERAL
GIVES REASONS.
For the NoIle.Prosequi Entered in
the Case of Territory
VS.. Kanoii.

Attorney General Dole filed a written
| motion for nolle proseQui yesterday be-
| fore the Supreme Court, setting out
in detail the question Of fishing rights
| in the Territory of Hawaii. His mo-
ton was made in the case of Territory
of Hawaii VS.. Kanoi, as follows:
IN THE SUPREME COURT OF THE
| TERRITORY OF HAWAII. OCTOBER
! TERN, 1901.
Territory of Hawaii VS. Kanoii.
| MOTION OF NOLLE PROSEQUI.
The interests whic might be directly
or indirectly affected by the above en-
| titled prosecution are so great that /
deem it best to state my reasons in writ
| ing, for asking that a nolle prosequi may
be entered, in order that the same may
be a matter of court record.
The charge in said cause, originally
begun in District Court, is follows
violating Section 1850 of the Penal Laws
of 1897 at Kaneohe, Island of Oahu, Ter
riory of Hawaii. or the 29th day of April,
1901, by wilfully depriving the Konohiki
of the Ahupuaa of Kaneohe of his fishing
rights and by then and there wntully ap-
propriating to themselves tabooed fish,
to wit, Amaama, of said Konohiki from
the sea fishery of said Ahupuaa."
To this charge the following demurrer
was filed:
~ That there is no law provided for
such an offense as the offense stated in
the charge, to wit: by wilfully depriving
the Konohiki of Kaneohe of his fishing
rights and wilfully misappropriating the
tabooed fish to themselves, to wit, the
Amaama'
''2. 1t is not stated in the charge the
Konohiki fishery wherein the onense to
have been committed by the defendants.
80. Your court has no jurisdiction 10
hear case of this nature.
"4. All the laws relating to fishing
rights of Konohiki were repealed by the
Organic Act of the Territory of Hawaii,
Section 90" The motion to dismiss was
denied by the District magistrate
The act of taking the fish was admit
ted by the defendant. The record of the
District Court shows that he pleaded
guilty, but, taken in connection with the
demurrer and the record of the under
standing between the attorneys on both
sides. the conclusion is unavoidable that
he did not admit that he had violated
law.
Upon this admission, the District mag
istrate sentenced the defendant to pay a
fine of one dollar and costs.
Sections 90 and SO of the Organic Act
are as follows:
That all laws of the Republic of Ha-
wall which confer exclusive fishing rights
upon any person or persons are hereby
and all fisheries in the sea wa
tiers of the Territory of Hawaii not in
cluded in any fish pond artificial in
closure, shall be free to all citizens OF
the United States, subject, however, to
vested rights; but no such vested right
shall be valid after three years from the
taking effect of this Act unless establish
ed as hereinafter provided. That
any person who claims a private right
years after the taking effect of this Act, |
file his petition in Circuit Court of the |
Territory of Hawaii setting forth his |
claim to such fishing right, service of |
which petition shall be made upon the |
General, who shall conduct the |
case for the Territory, and such case |
shall be conducted as an ordinary action |
at law. That if such fishing right be es-
the Attorney General of the !
Territory of Hawaii may proceed. il /
such manner as may be provided by law
Tor the condemnation of property for |
public use, to condemn such private right |
IF fishing to the use of the citizens of
he United States upon making just COM
1ensation, which compensation when
awfully ascertained, shall be paid
tut OF any money in the treas
Try of the Territory of Hawaii not
otherwise appropriated" These sections
lbolish the exclusive fishing privileges.
Excepting such as are a matter of vested
'ght
Section II of Article V of Chapter VI
# the session laws of 1916 provides that: !
The fishing grounds from the reefs. and !
where there happen to be no reefs, from
he distance of one geographical mile |
eaward to the beach at low water mark,
han in law be considered the private
property of the landlords whose lands, |
" ancient regulation, belong to the
anne: in the possession of which pri-
ate fisheries, the said landlords shall |
Tot be molested except to the extent of
he reservations and prohibitions herein
Ifter set forth"
This section has continued in force for
ifty-five years. unchanged by legisla-
ion other than the Organic Act Under
his section, it seems to me, a vested
light to an exclusive Konohiki fishing |