The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-12-28
ROBINSON
UPSETS GEAR
Two Decisions Of the
Absent Judge Are
Turned Down.

In the Circuit court yesterday Juu5o
Robinson upset a couple of decisions
made by Judge Gear upon law point
that is of great interest to all the
people of the Territory and which, IN
cfdentalIy, has already been twice in
directly passed upon adversely to Gear
by the Supreme Court of Hawaii.
Judge Robinson's ruling was in the
matter of the habeas corpus proceed
ing brought in behalf of Hop Sing Wo,
convicted in the lower court of con-
Quoting a restaurant without a license.
Attorney c. C. Biting asked that the
Chinese, who had been fined $40 be
released because he claimed that the
section under which ne had been con-
victed was unconstitutional, in that
the Board of Health was given too
much power.
Resisting the application, Deputy At
torney General Fleming held that the
section forbidding the issuance of
license for hotel or restaurant on
premises where the Board of Health
had forbidden the issuance of such Ii
cense because the premises were not
in proper sanitary condition was a
lawful police regulation in the inter-
est of the public health. 1t was true
that Judge Gear hal twice held, in
the Frank Luneeko case and one 9TH
er, that the vesting Of such arbitrary
discretion in Board of Health was url-
constitutional but Mr.. Fleming ar
gued that IN a police regulation and it's
enforcement, there must be an arbitra-
ry discretion, if the regulation was to
be enforced at all. A building. for in
stance, that was sanitary in one part
of town might be insanitary in an
other.
After the case had been fought out
during the greater part of the day,
Judge Robinson held that the discre-
tionary power WIS properly vested in
the Board, and denied the application
for a writ.
Attorney Biting gave notice of APP
peal.
COURT NOTES.
4 Deputy Attorney General Prosser left
last night for Kauai, to take the term
of court in the Fifth Circuit. He viii
be absent about three weeks.
lin Maria Correa VS.. L. NJ Baldwin
and W. E. Saffery, an appeal from the
District Court at yVailuku, the SUI
preme Court holds that continuance
of the case for an uncertain and in
definite period, namely until defend
ant L. NJ. Baldwin shall get well,'' is
equivalent to a dismissal of the case,
and is appealable. The case is re-
manded.
In the admiralty case of Mrs. Maka-
liilii against the bark Olympic, a suit
for damages arising out of the death
Of a stevedore by falling into the hold
of the ship. argument was heard by
Judge Dole yesterday on a motion to
amend by the l.~eilant. J. j. Dunno
was for the nbellant and H. E. Cooper
for the ship.
The Supreme Court yesterday dis
missed the appeal in the case of the
Kona-Kau Telephone Company vs. H.
T. Mills in one sentence.
Equally brief is the decision in the
case of NJ. F. Scott VS.. H. T. Mills,
where the Supreme Court says: Alloy
VS.. Scott is not in point. Judgment
affirmed
In Lo Toon. alias Lo Chon, plaintiff
in error, VS.. The Territory of Hawaii,
the Supreme Court overrules all the
plaintiffs exceptions. The plaintiff was
convicted in the Circuit Conrt in No
vember, 1908, of an assault with a
deadly weapon with intent to commit
murder.
Before Judge Whitney. Tax Assessor
Holt has begun suit against the cap
tains of various is land steamers to col
lect income and poll taxes. The mas
ters sued We're w. x. Freeman, w. c..
Bruhn. R. F. Bennett. w. F. Thomp-
son. S. Thompson and c. Peterson.