The Hawaiian gazette., 1904-12-30
ROBINSON
UPSETS GEAR
Two Decisions of the
Absent Juoge Are
Turned Down.

In the Circuit Court yesterday Judge
Robinson upset a couple of decisions.
made by Judge Gear upon a law point
that is of great interest to all the
people of the Territory and which, in
cidentaily, 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 restaurant without license.
Attorney c. c. Biting asked that the
Chinese, who had been fined $40 be
released because he claimed that the
section under which he 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 a
license for a hotel or restaurant on
premises where the Board of Health
had forbidden the issuance of such Ii
cerse because the premis es We're not
in proper sanitary condition was a
lawful police regulation in the inter-
est of the public health. 1t was true
that Judge Gear had twice held, in
the Frank Lunecko case and one 9TH
err that the vesting of such arbitrary
discretion in Board of Health was un-
constitutional but Mr.. Fleming ar
gued that in police regulation and it's
enforcement, there must be an arbtra-
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 was properly vested in
the Board and denied the application
for a writ.
Attorney Biting gave notice of ap-
peal.
COURT NOTES.
Deputy Attorney General Pro left
last night for Kauai, to take the term
of court in the Fifth Circuit. He will
be absent about three weeks
In Maria Correa VS.. L. NJ. Baldwin
and w. e. Saffery, an appeal from the
District Court at Wailuku, the Su-
preme Court holds that a continuance
of the case for an uncertain and in
definite period, namely until oefend-
ant l.. NJ. Baldwin shall get WE'LL" is
equivalent to a dismissal of the case,
and is appealable. The case is re-
manded.
In the admiralty case of Mrs Maka-
tn ha
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 libellant. ]. ]. Dunno
was for the libellant and H. E. Cooper
for the ship.
The Supreme Court yesterday dis
missed the appeal in the case of the
KonaKau 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: "Ahoy
VS.. Scott is not in point. Judgment
affirmed"
In Lo Toon, alias 10 Chon, plaintiff
in error, vs. The Territory of Hawaii,
the Supreme Court overrules all the
plaintiffs exceptions. The plaintiff was
convicted in the Circuit Court in No
vember, 190S 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 were w. X. Freeman, w. C.
Bruhn. r. F. Bennett, w. F. Thomp-
son, S. Thompson and C. Peterson.