The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-05-07
MORE TROUBLE
FOR THE COURT
A QUESTION OF JURISDICTION
THAT is OF FAR-REACHING
IMPORTANCE
THE AUTHORITY IN CHAMBERS Is
QUESTIONED.
Attorneys Argue That The Judges
Have No Right to Hold Court
Separately.

The first circuit court appears to he
in a worse legal muddle than ever, as
a result of Hawaiis changes in laws, |
judging by the questions raised this !
morning when the matter of sitting |,
separately or en- banc was discussed. |
Some of the attorneys present suggest |
ed that the decision towards which the
court appeared to incline would invan- |
date half or more of the criminal trials
of the past few years, while Judge
Humphreys, raising the question of
jurisdiction in chambers, said that the
matter was of most vital Importance to
the community, and that it would only
be finally settled by an appear to the
United States Supreme Court
All the discussion arose out of a smar
damage suit from the other side of the
island, an appeal by Yoshida and others
from a judgment in favor of Foo Kee
Company for 800 damages for the kill
ing of a horse Robertson appearing
for the plaintiffs, said that he was will
ng to waive the matter of jurisdiction
and Brooks for the other side agreed,
but Judge Gear then suggested his own
lack of jurisdiction, and invited argu-
ments. Judge Humphreys sat with him
1t appeared in the course of the argu-
ment that the question was raised some
years ago, by local attorneys, but it
was dropped on account of the far
reaching consequences of a decision
adverse to the jurisdiction of the court.
Judge Stanley who strongly favored
the opinion that the judges could not
sit separately, said that the matter had
been so brought up. when the attor-
neys saw what would be the effect of a
decision that the judges had not the
right to sit separately he said they
| dropped the natter
Robertson argued first, for the opinion
that the judges have equal power, to sit
in separate sessions at the same time
Cecil Brown took a different view
though he later suggested ~ way to
create the power to sit separately by
adopting a rule to that effect Brown
said that the power to sit in chambers
was set forth and defined in the statute
but that of sitting in term separately
was not. There should be an express
provision for such a power, he con-
tended.
J. A. Magoon thought that the judges
could sit separately. He called atten-
ton to a Hawaiian statute giving rule
for construction of statutes, under
which he contended that the statute
stating that the first circuit court shall
consist of three judges, either of whom
may hold the court" could be read so
as to allow for separate sessions at the
same time, by each of the judges Judge
Stanley said he saw nothing in the
statute allowing the judges to sit Sc
parately.
Magoon said that the court ought to
consider the effect Of it's ruling, in in
terpreting the wording of the statute.
''In other words, we ought to give a
polite decision" said Judge Gear, quot
ing an authority to the effect that
judges ought not to consider the effect
! of their decisions.
Dickey made a long argument in the
! course Of which he coIitended that the
evident intent of the legislature which
passed the act in question, was 10 pro-
/ vide three sessions of court in the first
! circuit court. There were .Wo judges
sitting separately when the act was
passed, but the calendar was cong sted.
The legislature therefore provided for
another judge, expecting all three to sit
separately.
Judge Humphreys said Chat the Ques-
tons raised, if pursued throughout their
| qualifications, We're very serious to the
community and ought to be determined
He quoted a decision that the judge of
a constitutional court such as that of
the first circuit, has not a courts pow
ers in chambers Such a judge should
not exercise court powers in chambers
yet that is what we are doing here
every day." said the judge. The ques-
ton raised here will not be decided
finally until they are ruled upon by the
highest federal court"
Robertson wanted to know the au no.
rity for naming one of the judges a pre-.
siding judge. The court told him thai
the judges did that themselves. There
is nothing in the statute about il" said
the attorney. Suppose the three judges
did not agree. Suppose the first ant
third judges held that the third judge
should preside, and the second judge
thought it his duty to preside. Under
much power as presiding judge as the
other. This leads to the view thai
the judges have equal power anC
may all sit with equal Jurisdiction"
Senator Brown suggested that the
rules just made by the court were lille
gal, because they had not been passed
by majority of all the circuit judges
on the islands, as he contended the law
provided.
Judge Little win be here in a few
days" said Humphreys, "and we car
make them all right by having him sign
them"
Brown thought that under the law q
rule for separate sessions Of the three
judges might be made, and McCants
Stewart rose to complain that the Bar
Association had not been consulted I'm
!
reys stated that he had made repeated
requests that the bar association make
some rules and submit them, but the
lawyers had not acted. He had made
the suggestion during his first term un
the bench ana had followed it up. Fin
ally, s the Bar Association did not act
the judges took up the matter and
acted alone
Judge Stanley again expressed his
opinion that there was nothing in the
law to allow separate sessions. All the
attorneys present wanted the question
settled at once, and MagOon suggested
a habeas corpus proceeding i'm the SUI
preme court, in behalf of someone IN
Jail 1t was finally decided to await the
ruling Of Gear, in the case at bar. The
ruling viii be made on Monday, and if
he decides not to sit, the matter will
be taken before the Supreme court of
the Territory.
''ENhpn soma ra SO of suHipiapt ip,p,,.r-