The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-12-20
FISH TABU
NOT PENAL
Konohiki Vested Rights
Have Civil Law
Protection.

BY unanimous opinion the Supreme
Court grants the discharge OF F-ulxuna-
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
vested rights do not include the right
of fishing owner to prosecute a tres
passer criminally. AS the syllabus of
opinion puts it: Section 1860 of the
Penal Laws in so far as 1t provides
n penalty for wilfully depriving a kono-
hiki of his fishing rights by appropria-
ting the tabued fish of said konohiki, or
otherwise, held repealed by section 50
of the organic act, and that petitioner
being convicted under said section 1860
was entitled to discharge on habeas
corpus"
When Fukunaga was arrested a
large number of his fellow countrymen
japanese, were 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
We're illegally fined all the same, as this
decision shows. Among the remarks
made in the body of the decision the
following are found:
"The intent of Congress is clear to
destroy, so far 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by statute is repealed any penalty pro-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 trespass upon such fisheries
criminally. All rights of fishery, how
ever, were 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
We're not affected by the passage of that
act and continue as rights of property
Notwithstanding the repeating words Of
section 80. This was settled by Damon
VS.. Hawaii, 1874 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
lgable or not is of no consequence"
The court says a vested right cannot
be claimed that portion of the penal
laws under which Fukunaga was con-
victed. 1T gave the right to proceed
criminally against one for depriving a
konohiki Gland owner) of his fishing
rights. The law is we'll settled that
there can be no vested right in a 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 trespass upon
land"