Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-06-06
GALBRAITH SHOWS
WHY HE C0NCURS
CONTINUED from Page ~

make a classification that the legisla-
ture did not make or authorize"
After briefly waving aside the objec-
tons to the mittimus as not well found
ed. Justice Galbrath takes up the ar.
gument that the acts charged in the
affidavit would not constitute direct
contempt but would be indirect or con.
structive contempt, and that the legis.
lature had taken away the power of tho
court to punish summarily for con-
structive contempt, therefore that tho
judgment against Smith Is void. This
argument he shows is based principal
ly on the construction of the Act OF
August 20. 1855, entitled. An Act to
DEFINE and LIMIT the Authority OF
Courts and Judges to Punish for Con.
tempt IN CERTAIN CASES" Tho
Act contains the following three sec
tons:
Sec |. The publication Of proceed
ings before any court or judge shall
not be deemed to be contempt. nor
shall such publication be punishable as
contempt"
Sec. 2. Constructive contempt shall
not hereafter be punishable as such
Sec. 3. The terms of this Act shall
apply to the publication of all pro-
ceedings in all courts, or before all
| judges, hitherto had, now pending OF
which may hereafter be brought"
Justice Galbraitb remarks that there
is no repeating clause with the Act,
and no intention indicated to repeal
any existing statute. The section OF
the penal law Of contempts was in
force at that time The title of the Act
showed that the intention of the legis'
lature was not to repeal some existing
statute but TO define" and limit tho
authority" He goes on to say: "Thd
definition was given in the first sec.
ton, |. G., publication of proceedings;
and the limitation in the second sec
ton, constructive contempt. II was
| this construction that the Legislature
intended to restrain and this power
limit. II is generally supposed that
this Act resulted from certain decisions
of this court rendered n short time pre-
| NlbuEs IlN uuJN'0 WV VI NhNpN WV
sions. in one of which ii was held that
! the publication OF the contents of a
bill in equity filed in court was con-
structive contempt. What the Supreme
Court held in these cases was that the
offending publications were not within
any of the provisions of the Penal
Code. but aside from the statute were
constructive contempts and thus pun
ishable. Justice Galbraith thinks that
the constructive contempt for which
the Act of 1883 prohibited the punish
ment was such as defined in those
cases and held by the court not to be
within the penal law of contempts
From this he concludes as follows:
This construction is supported by
the decisions OF this court rendered al
the February term, 1891, wherein the
same contention was made by the peti'
toner as is made in this case. The
court said: Were we to proceed alone
upon the common law, the contention
OF counsel would seem to be sustained
by authority. But we have n statute
which, so far as we have learned, II
peculiar to this country, and which de
scribes and enumerates certain aCt'
and circumstances as cOntempts ant
makes them punishable upon indict
ment and conviction by jury and alst
summarily. These acts are not classi
fed in the statute as direct and con
structive contempts. Some of theS'
acts would fall under one head ant
some under another as generally elias
sified. By our penal law, however
they are all contempts and punishable
either summary or upon indictment
or in both ways.
THE Legislature in enacting the Law
OF 1888 had in mind without doubt, tn
then recent cases decided by this cour
in which certain publications, avowed
ly not of the character enumerated II
the Penal Code as contempts, were con
strued by the court to be contempt
and these the legislature declared to b
no longer punishable as such In r
Bush. s Haw. 300, 223.
1T seems to me that the decision II
the Bush case is controlling in this.
concur in the judgment of the Chic
Justice remanding the petitioner"