The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-11-08


ian, are going to carry the question
OF jurisdiction of circuit Judges at
chambers TO the Supreme Court OF the
United states. They do not accept the
construction OF Hawaiian judiciary
law as affected by the Organic Act
which the supreme Court pronounced
ed at some length below. Sidney NJ.
Ballou, of counsel for the writ OF
prohibition that is dissolved, had n
writ of error prepared before the day
was over to carry the case to Wash
ington.
Nobody had ever found anything
wrong with the Hawaiian jurisprud-
ence in it's giving jurisdiction of pro-
bate and equity matters to Judges at
chambers. Other systems have pro-
bate Judges apart from the ordinary
law courts and some confer equity
jurisdiction on particular judges who
preside as we'll in courts of law One
advantage of the Hawaiian system is
that it saves separate court machinery
and expenses. However, in the course
of bitterly contested probate case.
circuit judge suggested and attorneys
eagerly raised the point that the Act
of Congress providing a government
for the Territory of Hawaii abolished,
at least by implication, all the old Ha-
probate Jurisdiction on circuit Judges
at chambers-that is out of regular
court terms with juries in attendance
as we'll as recognizing such jurisdic-'
ton.
The Supreme Court of Hawaii finds
the point not we'll taken and, as the
construction of a Federal law is at is
sue, it is competent for the lawyers
contending the contrary to appeal to
they do and the Parker case will be
hung up until the final word comes
from Washington.
STATUS OF JUDGES.
Circuit Judges at chambers are de-
cided by the Supreme Court to have
independent Jurisdiction in equity and
probate matters, such independent
jurisdiction being exercised by such
Judges as courts of record, and not
privately or summarily-the phrase
"circuit judge at chambers being in
such case merely a method of describ-
ing such courts.
Referring to the contention that the ,
Organic Act implicitly repealed Ha-
waiian laws giving circuit judges at
chambers equity and probate jurisdic- |
ton, the syllabus speaks as follows:
in constituting a doubtful provision
of an act other provisions, the act as
whole and its reason and spirit may
be considered; also the circumstances
under which it was adopted. the his
tory which preceded it and the conse !,
quences of proposed constructions;
weight may be given to long contin-
ued, unquestioned and contemporaries
Gus construction; If the provision is
borrowed, the construction placed up
on it previously may be considered;
repeats by implication are not favor
ed; expressio unius est exclusio alteri-
u.s."
Chief Justice Frear writes the deci-
sion, with the concurrence of Justice !
Hatch and Circuit Judge De Bolt in ,
place of Justice Hartwell. 1t is in the |
matter of the application of Alfred W. |
Carter, guardian of the property OF
Annie T. X. Parker, n minor, for a
writ of prohibition against the Honor
able George d. Gear, Second Judge of
the Circuit Court of the First Circuit, |
at chambers, and j. S. Low, next ,
friend of Annie II. X. Parker, a minor.
Ballou & Marx: Kinney, McClanahan
& Cooper, and Robertson & Wilder for
petitioner; ]. A. Magoon and ]. Light
foot for respondents. The decision is |
that the permanent writ is denied and
the temporary writ dissolved. In pur- !,
suance of this deliverance Messrs. |
Magoon and Lightfoot at once filed a !
motion to set day for hearing the |
Parker case on its merits before Judge |
Gear
HISTORICAL SKETCH.
The following bit OF history relative
to courts In Hawaii Is given In the
body Of the opinion:
Much, as to jurisdiction and pro-
cedure, is governed by what may be
Hawaiian common law
that has grown up without the aid OF
statute or has been built upon statutes
by inference and been recognized by
bench and bar and has To some extent
been assumed In the enactment Of
statutes. In fact, the judiciary has
developed here. especially In It's earlier
period, much as II ala In early Eng
lish history, gradually and largely
without the aid ~ statute There WAS
A gradual separation ~ Judicial from
eNseudye ana legislative functions, a
gradual organization of q judicial syHs
TEN, Introduction ~ Trial by Jury
separation ~ law ana equity. separas
ton ~ elyil ana criminal maiiefs az
law, and NJ Equity probate and ado
m.Hliy matters ut chambers ana ~
ihH functions ~ abe Judge and The
iufy sut "a Flaipai development ln