The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-12-17
FISH TABU
NOT PENAL
Konohiki Vested Rights
Have Civil Law
Protection.

BY unanimous opinion the Supreme
Court grants the discharge of Fukuna-
ga on a writ of habeas corpus from the
penalty imposed by District Magistrate
Hookano of Eva for trespassing on the
fishing rights of Oahu Railway and
Land Co. in Pearl harbor. The matter
went up on appeal from Circuit Judge
De Bolt. who had dismissed the writ
Justice Hatch is the author of the opin-
| ion, Justice Hartwell and Judge Rob
! inson signing it with him. George A.
Davis appeared for the petitioner, Bal
lou & Marx for the respondent.
| 1t is not because the Oahu Railway
& Land Co. have not the vested rights
/ excepted from the abolition of private
! sea fisheries by the organic act that
| Fukunaga goes free, but because the
OF fishing owner to prosecute a tres
passer criminally. AS the syllabus of
opinion puts it: Section 1850 of the
Penal Laws in so far as it provides
a penalty for wilfully depriving kono-
hiki of his fishing rights by appropria-
ting the tabued fish of said konohizi, or
otherwise, held repealed by section 50
of the. organic act, and that petitioner
being convicted under said section 1850
was entitled to discharge on habeas
corpus
When Fukunaga was arrested a
large number of his fellow countrymen,
japanese, We're arrested also. He, be-
ing the boss. was fined $50 and costs,
in default of payment of which he went
to prison at hard labor, but the others
We're fined only 81 and costs each, and
did not fight their cases further. They
were illegally fined all the same, as this
decision shows. Among the remarks
made in the body of the decision the
following are found:
1.-The intent of Congress is clear to
destroy, so fan as it is in it's power to
do so, all private rights of fishery, and
to throw open the fisheries to the peo-
pie. When a right or privilege granted
by statute is repealed any penalty pro-
vided for the violation of such right
falls also. No express words of repeal
are necessary"
Making the sea fisheries free is in
consistent with maintaining an act to
punish a trespass upon such fisheries
criminally. All rights of fishery, how
ever We're not destroyed by the repeal
ing act. That act was imperative as
far as vested rights are concerned. Such
private rights of exclusive fishery in
the sea as were vested rights at the
time of the passage of the organic act
were not affected by the passage of that
act, and continue as rights of property
Notwithstanding the repeating words of
section 95. This was settled by Damon
VS.. Hawaii, 1914 u. S. 154 Such rights
will remain rights of property until
they may be destroyed by condemnation
and the payment of value. Whether
the waters in which they exist are nav
igable or not is of no consequence
The court says vested right cannot
be claimed hat portion of the penal
laws under which Fukunaga was con-
victed. at gave the right to proceed
criminaily against one for depriving
konohiki Gland owner) of his fishing
rights. The law is we'll settled that
there can be no vested right in reme-
dy. 1t was fully within the power of
Congress to withdraw the original rem
edy. The right of action is not lost
There remains the same right of civil
action for trespass upon a fishery as
exists in the case of a trespass upon
land
-o%e