Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-02-19
MANY DIVORCES
PROVE ILLEGAL.
Judge Gear Is Sustained
In Proper Divorce
Ruling.
COURTS NOT PERMITTED
TO ENACT LAWS
SUPREME COURT SUGGESTS THAT
THE LEGISLATURE MAY
PREVENT BAD RE.
SUITS.

by decision Of the Supreme Court
rendered today in the case OF Willem.
ina Proper VS.. Anton J. Proper. large
but exactly unknown number of di.
NOr Ccs granted in the Hawaiian Isl.
nnds were illegal. Chief Justice Frear
writes the courts unanimous opinion.
OF which the following is the syllabus:
Service by publication in divorce
cases, when required by the statute to
be made in certain named newspapers,
cannot be made in other newspapers.
That Is so even though the newspa.
pers named in the statute have ceased
TO exist at all or at least under such
names.
THAT Is SO also even though since
such cessation of such named newspa.
pers service by publication has been
made in other newspapers in a number
Of cases by order OF various Circuit
Judges covering a period of several
years. The arguments of Contempora.
neous and long continued construction
and hardship, II otherwise shown by
the facts, do not apply in case where
the statute is explicit and does not ad.
tlit of construction"
I The statute, enacted in 1870, pro.
vides that where personal service Is
impracticable the summons shall be
Re Au Okoa. In the Proper case the
publication was not in either OF those
papers, which. were long since dead,
but in the live Evening Bulletin. Ser.
vice by publication was unknown to
the common law and therefore cannot
be made except as permitted by stat.
ute. As the court says, trial judge can
not make statutory law, much less can
he repeal or amend existing stat.
utes. Il Is mentioned that there is
some reason to believe that the papers
named in the statute were continued
under the names OF the Hawaiian Ga.
zette and the Kuokoa, making ground
for argument that II publication in this
or any similar case had been in these
lrapers there would have been compli.
Gncc with the statute. The case at bar
was beyond any such cue.
granted by the trial courts under cir
Cumstances like the present We do not
know" the court says. Counsel in
his brief enumerates eleven such
cases heard by four different Circuit
Judges during the last four years. We
presume there were others in previous
years. What the result will be in re.
spect of such cases-as to property
rights, legitimacy of children, liability
to criminal prosecution, etc.-if we do
not uphold the jurisdiction in cases Of
this kind wnen there has been no ser
vice such as is required by the statute,
we cannot say. Phe Legislature could
doubtless by further legislation pre-
vent or cure some of the results, and
we can only hope that the others will
not prove of great consequence. We
should gladly uphold the jurisdiction.
If we could. But neither OF the argu
ments made, nor any other that occurs
to us, would warrant us in doing So"
T. McCants Stewart appeared for the
libellant and A. S. Humphreys as
amicus curae for Judge Gear, whose or
der Is affirmed by the decision.
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tee to wait on the Governor, reported
at the close of a five-minute recess
that they had seen the Governor, who
ANNOUNCED that he was practically
ready to present his message to the
Legislature, but would prefer to wait
until the House of Representatives
was prepared for business, when h
would send his message to the Senate
land House simultaneously.
The report was received and the
committee discharged. Recess was
then taken until 2 p. m.