The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-06-06

4 anu impartial trial. So far as
history is concerned. then, there is good
reason for believing that the legisla-
ture meant what it said. l. e, to pro-
hibit thereafter the punishment as such
or constructive eontempts (Which
means any or all constructive con-
temptO. and not merely ot some con-
structive contempts.
In the case entitled In re Bush, 8
Haw-. 81. 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. il seems TO me
! that there Is no sufficient ground for
80 constituting the statute. 1t is con-
| tended that this court must now follow
that decision because OF the rule that
! where a statute, which has received a
Judicial construction. is re-enacted in
| the same OF substantially the same
terms. that is to be deemed a legisla-
tive adoption OF such construction.
The re-enactment here referred to is
that contained in the Organic Act. The
4 question is one as to the intention OF
Congress in passing the Organic Act.
/ and this intention is to be ascertained
from reading OF the Act as a whole.
Section provides that the laws Of
| Hawaii not inconsistent with the con-
stitution or laws AZ 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-
vided." Before the Organic Act went
into effect the Supreme court had juI is
diction and authority to overrule any
Of its former decisions. with possibly
| some exceptions, real or apparent but
not here material, and the act of 1883
was open to construction by the court
and subject to having any former con-
struction modified If to the court II
| should seem right and just to do so.
In my opinion. Congress intended by
the Organic Act to continue the same
powers in this court in this respect
which ii Heretofore had and the rule
of construction contended for does not
apply in this case. In so far, then, as
the court in the Bush case held to the
contrary on the subject of the con-
struction OF the Act of 1888. il should be
overruled.
1t is also contended that section 257
of tie Penal Laws. which defines GER
tain acts to be contempts. sets forth in
the enumeration certain constructive
contemptS. that therefore If section 2
of the Act of 1883 is construed to in
clude constructive contempts other
than the publication of proceedings,
that act would by implication repeal
section 257 in part. and that repeats
by implication are not favored. 1t is
true that repeats by implication are
not favored, but nevertheless there
may be such repeats, and they are to
be given effect where the language
and intent are clear
The argument that the restriction
/ IL ~
apply to the Circuit Court of the First
Circuit because said court was not then
in existence, Is not sound. The pro-
vision clearly is sufficiently broad to
apply to courts thereafter created as
we'll as to courts then in. existence.
1.-The mere fact that the statute existed
before the court was created does
not exclude IL. The legislature made
use of general language for the pur-
pose, as it would seem. of applying the
act not only to existing courts but to
any that might thereafter be created.
Middlebrook VS.. State, AZ Conn, 26I
Was the Act of 1883 unconstitutional?
The constitution in force at the time
of its enactment was that of 1887, Ari-
Gle 81 of which was as follows: THE ju-
dicial power OF the Kingdom Shall be
vested in one Supreme Court, and in
! such inferior courts as the Legislature
may from time to time establish
Article 66 reads: The judicial power
shall be divided among the Supreme
Court and the several inferior courts
of the Kingdom. in such manner as the
legislature may from time to time pre-
scribe, and the terms of office in the
inferior courts OF the Kingdom shall be
such as may be defined by the law
creating them" The Circuit Court of
the First Circuit was created by the
legislature under that provision of the
constitution. 1t was. under the mon
=, larrfc "a
distinguished from a constitutional
court. and il was competent for the
legislature which created Ii to define
or limit its powers in the matter or
contempts. The power to punish for
contempts is inherent in all courts; its
existence is essential to the preserva-
ton of order in judicial proceedings,
and to the enforcement of the 1udg-
ments, orders. and writs of the courts,
and consequently to the due admins
tration of justice. The moment the
courts of the United States were called
into existence and invested with juris-
diction over any subject, they became
possessed of this power. But the
power has been limited and defined by
the act of Congress of March I'd, 1871
The act, in terms. applies to all courts;
whether IL can be held to limit the au-
thority of the Supreme Court, which
derives Its existence and powers from
the constitution, may perhaps De
matter OF doubt. But tnat II applles 10
the Circuit and District Courts there
can be no question. These courts were
created by act OF Congress. Their
powers and duties depend upon the act
calling them into existence, or subse-
quent acts extending or limiting
their Jurisdiction. The Act OF 1881
is. therefore. TO them the law
specifying the cases in which summary !
punishment for contempts may be in !
nicted IL limits the power Of these |
courts in this respect to three classes |
of cases: First. where there has been /
of a person in the presence |
OF the courts. or so near thereto as TO |
obstruct the administration OF justice;
second. where there has been misbe- |
havior Of any officer of the courts i'm |
his official transactions; and third. /
- -. tbara has been disobedience or