The Hawaiian gazette., 1902-06-06
upvf M ro,sts uplsIos

qhs surf.ris csufi ,ssisfisi fita >
iHet~ah iH tht 49, ~ NaIif ~
Nniih. efiiaf Hf Tht Adtrfnsff Hha
as sentenced to thirty daBf imlfitpn.
meet ~ the Circuit Court fuf contempt
~ court. in puhiahinF n cartoon oi
Judge Gear The case had been
brought before the Supreme court 81
habeaB corpus proceedings the main
point being that the at committed vas
not IN the presence ~ The court 90 that
" rstempt had been committed NJ all.
u -s constructive contefppi" which
by Hawaiian statute " not punishable.
sna consequently that the circuit Court
h.a no Jurisdiction 20 sentence Mr..
smith.
The decision 81 majority ~ the
court. by Judges Frear and Galbraith.
uphoids the decision Of the Circuit
court. while Judge Perry files a strong
dissenting opinion.
Each of the Judges has written an
opinion OF his own. The decision of
Judge Galbraith Is that the contempt
committed was direct contempt. The
decision Of Judge Frear is somewhat
obscure In its reasoning and meaning.
As far as a brief study thereof indi-
Gates. he holds that under Hawaiian
statute the Supreme Court cannot on
habess corpus proceedings, which are
of a collateral nature. inquire into the
merits OF the case. He states. In effect,
that II these proceedings had come be-
fore the Supreme Court on appeal or
writ of error. as ls allowed by the stat
utes of some OF the states. but IL not
allowed under Hawaiian law, the result
might have been different. As II U.s. he
feels bound by the technicalities of the
situation. and declines to go into the
merits of the question. holding that the
Circuit Court had jurisdiction.
Judge Perry holds. In a strongly rea-
soned and logical decision. that the
publishing Of ~" cartoon was not "A
direct contempt, and is. If anything, a
Constructive contempt" which by Ha-
waiian statute is not punishable.
The difference between direct" and
constructive" contempt is that a di-
rect contempt is one committed in the
presence or immediate vicinity OF the
court. A constructive contempt Is an
act not committed in the presence OF
the court. such. for example, as news
paper Articles commenting upon, or
cartoons relating to the court
The reasoning in Judge Galbraith' g
decision Is. as we understand 1t. that
any newspaper commenting upon the
decision of a court in a manner dis
tasteful to the Judge of that court, is
liable to be punished for contempt not
withstanding that there Is an existing
statute prohibiting the punishment of
constructive contempt.
The decision of Judge Perry Is a di-
rect negative of the reasoning of Judge
Galbraith and denies that the courts
have any such power.
The decision of Judge Frear, while IL
in effect supports that of Judge Gal
braith, does not go as far. and whether
1t supports to the full the theories ad-
vanced by Judge Galbraith are left an
open question.
The attorneys for Mr.. Smith, Messrs
w. o. Smith and a. Lewis, Jr., and
Lorrin Andrews, believe that a Fed
eral question is involved, in that Con-
gress. having ratified. among other
statutes. the Haw allan statute prohib-
iting the punishment of constructive
contempt" that statute is now as much
Federal statute as though 1t had been
passed by Congress in the first in
stance. II this contention is correct
II gives Jurisdiction to the Federal
courts to consider whether or not the
act committed is. in effect. a direct OF
constructive contempt With a view
to securing Federal adjudication on
this point, the question will be immedi-
atciy brought before United States Dis
trict Judge Estee, on a writ of habeas
corpus.