The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-12-02
GEAR NOT IN
CONTEMPT
Appeal to Federal Court
Not Operative As
Supersedeas.

The Supreme Court has denied the
motion to put Judge Gear and ]. s..
Low on their defense for contempt of
court in the Parker litigation. Justice
Hatch writes the unanimous opinion
of the court, of which the following is
the syllabus:
"A preliminary order of prohibition
expires when the court after hearing
makes a final order disallowing the
writ of prohibition prayed for. The
preliminary order cannot be revived, in
the absence of new exercise OF judi
cial power. by a supersedeas allowed
on the suing out of a writ of error"
AS stated in the opinion the contempt
proceedings We're as follows:
This is an application for an order
to the Honorable George d. Gear, Sec.
ond Judge of the Circuit Court of the
First Circuit, and J. S. Low, next
friend of Annie T. X. Parker, minor,
to show cause why they should not
De adjudged guilty of contempt of this
court for disregard of a preliminary
writ of prohibition heretofore issued on
the application of Alfred w. Carter,
guardian. On September I, 1904 Alfred
w. Carter, as guardian, applied for and
obtained from the Chief Justice of this
court preliminary writ of prohibition
restraining aid Circuit Judge from
proceeding on motion pending before
him made by said ]. S. Low, next
friend of Annie T. X. Parker, a minor,
for the removal of said Alfred w. Car
ter as guardian until the further order
of this court. On November Z, 190i,
this court rendered its decision, dis
solving the temporary writ of prohibi-
ton and denying the application for a
permanent writ. On November s, 1904.
the petitioner obtained a writ of error.
to the Supreme Court of the United
States, the order granting it stating
that 1t was to operate as a supersedeas.
A bond was filed and the papers con-
nected with the writ of error perfected
on the same day. The motion for the
order to show cause sets out that said
Circuit Judge is about to proceed with
the trial of the application for the re-
moval of said A. w. Carter as guardian
OH its merits, Notwithstanding the writ
of error and supersedeas."
Kinney, McClanahan & Cooper. Bal
lou & Marx and Robertson & Wilder.
appeared for the petitioner; J. Alfred
Magoon and ]. Lightfoot for the re-
spondents. The contention of the petit
tioner is stated by the appellate court
thus.
1T is contended by the petitioner
that the suing out of the writ of error
and the order allowing the same con-
tanning the words of supersedeas re-
suited in suspending the judgment of
this court disallowing the writ of pro-
hibition prayed for, and has revived
the preliminary order of prohibition,
granted on the filing of the original ap-
plication. The petitioner seeks to es-
tablish a distinction between law and,
equity in the operation of a super
sedeas on any restraining process
which had been issued prior to the al,
lowance of an appeal or writ of error:
1t being contended that a supersedeas
revives a restraining process issued at
law, such as writ of prohibitions; but
that it does not so operate in equity
upon an injunction upon an appeal be-
ing taken, is conceded
1--WE do not find" the Supreme Court
decides, that this distinction can be
maintained. The conclusion to be
uioNh rum tHe cases is rather tndl
the difference in effect of operation of
a supersedeas depends upon the nature
of the judgment or decree appealed
from. supersedeas always operates
as stay of execution and suspends the
enforcement of a judgment or decree
by execution or other process. But the
judgment or decree appealed from may
itself have an intrinsic effect which can
only be suspended by an affirmative
order, either of the court which makes :
the decree, or of the appellate
tribunal.'
Several authorities are cited and the
following is the conclusion of the
opinion:
"As further reason why the pre-
liminary order in the prohibition pro-
ceeding cannot be held to be now in
effect, 1t will be noted that it was by
its terms to remain in force only until
the further order of the Supreme Court.
When the court acted, as it did in
rendering its decision denying the writ
prayed for, the preliminary order be-
came functus officio. 1t could not be
revived by anything short of a new
judicial order.
LAS the threatened action of the Cir
cult Judge would not constitute a vio-
lation or disregard of the preliminary
Continued on page 81
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BLUEFIELDS FOR HILO.
Jared Smith. Director of the Unite1
States Experiment Station, in a letter
to the Board lated he had secured five
acres of land near Hilo for growing
bananas, and he recommended trans
ferring half of the Bluefields bananas
now under cultivation here TO this land,
1t being well adapted for the growing
OF such bananas. The Board agreed
with Mr.. Smith.
MINUTES TOO LONG.
The Board met at p. m. yesterday
but it was twenty minutes to five before |
the reading of the minutes had been
concluded. ]. F. Brown said the re-