The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-01-24
DECISION PLEASED
ALL TIE PARTIES

1t is unusual for the attorneys repre-
sentihg the piaineilas anu ue1e--aants, re-
specify ely, To Lave a5leeo upon d SUBJ
MISSION OF facts AID nope Tor tie same
decision. ills n4o lie Ease IN the ae-
ton brought by the uI.a sugar CON-
pany against the Ierr.I.ry OF hawaii.
When Attorney GeneraI DoIe, represent
ing the Territory, ana AIR. Hatch, repre-
senting the plat II, submitted tne-r ar
guments, they botn praNticai-y agreed
that the law was Unconstitutional and
should be so ceolaleo. i his was their
oesneu that the Supreme oourt oec.de
the question of Its constItu tionality or
tunconst- III tionality.
The question arose as to whether a
property owner should be prohibited from
clearing his land within go feet OF any
natural forest, as covered by the penal
laws. The decision was in favor OF the
plaintiff.
The Supreme Court yesterday rendered
its decision, the opinion being written by
Justice Galbraith, and concurred In by
Justice Perry and A. G.. M. Robertson,
lsitting in place of Justice Frear.
The syllabus says: Sections 1917, 1913 and
1919, penal laws, making it a misde-
meanor for any one Ito cut, mutilate or
destroy any forest tree or growing
shrubbery, or underbrush within $50 feet
of any road which may have been, or
hereafter may be, constructed by the
Government through any natural forest.
without providing any method for COM
pensating the owner thereof, constitutes
a taking of private property for public
use within the inhibition of amendment
5 to the United States Constitution, and
for that reason are void.
The facts set out in the submission are
as follows: The Puma Sugar Company
lis the owner in fee simple of tract OF
land at Waiakahiula, in Pahoa, District
of Puma, Hawaii. The land borders on
eminent in part through a natural for
est.
The Puma Sugar Company within the
three months just past has been enSaS-
ed in cutting and destroying f~rest tees,
shrubbery and underbrush on its said
land within $50 feet of this highway. the
company claims it has full right, and
lawful authority to so cut and Gear the
forest, shrubbery and underbrush.
The Attorney General, however, claim
ed the company was Liable to osecution
and fine for SO doing, notwithstanding the
same are growing upon land of the sugar
company, in accordance with the penal
law sections quoted above. The compa-
ny, on the other hand claimed these
sections were unconstitutional and void,
as they would deprive the company of
its property without compensation, and
without due process of law, and was
contrary to article of the amendments
to the Constitution of the United States.
1t was agreed by the parties that in
case said law was held to be unconstitu-
tional, that judgment would be rendered
in favor of the company, otherwise in
favor of the Government of the Territory
Iof Hawaii.
The opinion says: "In forbidding the
plaintiff to cut trees or underbrush, ETC.,
on it's land within $50 feet of the Gov
lernment road, there is such a serious In
Iterruption to the common and neces-
sary use of property as will amount to
"a taking within the rule announced by
the Supreme Court of the United States,
and no provision is made in the statute
for compromising the plaintiff for the
land so taken.
ct cannot be claimed that the public
morals, health, or general welfare OF
the country, require a strip of natural
forest $50 feet in width, along the Gov
eminent road. The conclusion that the
statute is void, necessarily follows.
whether it be considered as the attempt
ed exercise of the police power, or that
of eminent domain Let, Judgment be
entered for plaintiff"
Hatch &, Sillimah for plaintiff; e. p.
Dole, Attorney General, for defendant.