The Hawaiian gazette., 1902-06-06

slfi ui tslt iat r4sfn ~ ~
lHfhatIf u fuiH $40 VI ~ NhlHiA
0Iflf.i If thf HHfafH sHi INti ri
HifEaft ffHtff va tlHtffuriItI NHI
i.fli HNf aH1 W. fHUu|Hflh oi
NniH'llNH NJ 10 raHfi fUHm
uHIHr etH fefihsf Rht assImlHf
ihai ihs faraFtayt N ihf nliiflmna if
gut siien 10 a frelini N q rHHtlffiHf N
Smith NJ contempt ~ tfiftlnr Avn
puiiithinr and ~ rifpuiaiihf nnA tui
ishinr in She court fnuin. ana assuni
inr that futh hniinF ~ ihs cutfi hr4
low. cannot h. Disturbed eos hateaa
corpus even thuvsh there b. no eti.
deuce 60 sunluft A. ! am n ihf nrlh.
iun that ,hf- sentence ard nltiiinua
are Invalid because thf court had no
iufifiictiun 20 impose the one ~ issue
IN, other in the absence ~ a conviction
or judgment ~ guilty ~ that onsnse
this ~ course in view ~ my punciu-
sion. 20 be- hereafter stated that the
Circuit Courts ~ this TERRITORY have
no authority 90 lunish Tor consttuc-
tive Cont.mptsl. The authorities above
cited sufficiently cover this point The
principle Is the same where the com
ViCtion is ~ an offcnse which the court
has no Jurisdiction To- punish and the
sentence and mittimus are FOR another
and different offense. as where there IN
no conviction or judgment at all
Has the Circuit Court Of the First
Circuit power To punish FOR Construc-
tive contempt Under this head sev-
eral questions have been presented and
argued.
I'm August 1855. the Legislature Of the
monarchy passed an act tChsp. az
Laws OF 1SSs the second section OF
which reads as follows: Constructive
contempts shall not hereafter be pun
ishable as such" This language. taken
by itself, lis plain-ss plain as to leave
no room for construction. IL is CON
tended. however that read in connec-
ton with the two other sections OF the
statute. and i'm view of the causes that
led To its enactment, II must be con-
struod TO refer TO such only of CON
structive contempts az are mentlbned
in section ]. The latter section reads
The publication of proceedings before
any court or judge shall not be deemed
to be contempt, nor shall such publica-
ton be punishable as contempt" and
section 3: THE terms of this act shall
apply to the publication of all proceed
ings in all courts, or before all judges,
hitherto had, now pending or which
may hereafter be brought" In my
opinion, sections and3 do not
contain sufficient to justify the
limitation sought To be placed upon the
plain language of section 2. II the
words, constructive contempts" used
in section 2, were intended to refer
solely to the publication of proceed
ings," mentioned in section l. then sec
ton is pure repetition and wholly
superiluous. Section of itself provides
that such publication shall not be
deemed to be contempt and further
that such publication shall not be pun
ishahle as contempt Under the cir
cumstances, the presumption, If any,
10 hot oil a
unnecessarily and that 1t intended to
include in section something not al
ready included in section /. The pre-
sumption is further that the Legislature
in using the word constructive" knew
distinction between constructive and
direct contempts. The purpose of sec
ton evidently was to provide that the
proceedings permitted by the act, to
wit. by section ], to be published, in
cluded all proceedings, In whatever
court and at whatever times had.
In enacting this statute the leglsla-
ture doubtless had in mind certain
cases then recently decided by the Su-
prcme Court but il is "A mistake to sup
pose that those decisions We're simply
to the effect that the publication of
proceedings was constructive con-
tempt and punishable as such. Such
indeed was the ruling in Smith W.
Aholo, supra, decided in April, 1887;
but in Alderman VS.. Congdon, supra.
decided in January, 1887, the publica-
ton held to be constructive contempt
w8s, not of proceedings. but Of news
paper comments or expressions which
were deemed to be such as tended to
influence the result of "A pending suit.
The same is true OF the publication,
held to be contempt, in King VS.. Lee
Fook, Haw., 249 decided at the
February term. 1888 just before the
Legislature convened). 1t was not of
proceedings but of matter tending to
prejudice the right of the defendant to
a fair and impartial trial. SO far as
history is concerned, then, there is good
reason for believing that the legsla-
ture meant what it said, /. e.. to pro-
hibit thereafter the punishment as such
OF constructive contempts (Which
means any or all constructive CON
tempts), and not merely % some con-
structive contempts.
In the case entitled In re Bush,
Haw. 22l, the court construed the
statute differently, holding that by
constructive" contempts the legisla-
ture meant those only which were not
enumerated in section 257 of the Penal
Laws. With respect. it seems to me
that there is no sufficient ground for
so constituting the statute. 1t Is con-
tended that this court must now follow
that decision because of the rule that
where statute, which has received "a
judicial construction, is re-enacted In
the SAME or substantially the same
terms, that is to be deemed a leglsla-
tive adoption of such construction.
The re-enactment here referred to Is
that contained in the Organic Act. The
question is one as to the intention of
Congress in passing the Organic Act,
and this intention is to be ascertalned
from a reading Of the Act as whole.
Section provides that the laws of
Hawaii not inconsistent with the con-
Ftitution or laws af the United States
or the provisions of this Act shall CON
tinue in force, subject to repeal" etc.
Continue in force" means BE of the
same force" not more and not less,
after as before the time stated. Sec
ton 81 provides that until the legisla-
ture shall otherwise provide the laws
of Hawaii heretofore in force concern
ing the several courts and their juris-
diction and procedure shall continue in
force except as herein otherwise pro-