The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-11-01
OUT Of HIS
PROVINCE
Judge Whitney's Views
on Barred Door
Ordinance.

Thirty-two Chinese charged with
violating County Ordinance No 4
which prohibits gambling behind
| barred doors, went free yesterday
morning as a result of a ruling given
by Judge Whitney, in which he held
that the matter was out of his juris-
diction.
Attorney W. T. Rawlins appeared for
the defendants.
Judge Whitney rendered d written
opinion on "a motion to quash which
read as follows:
The defendants were arrested for and
charged with a violation of Order No.
4 of the Board of Supervisors of the
County of Oahu for being present pc
hind barred doors and in place where
the ingress and egreSs of the ponce
We're hindered and where certain gam
bling implements were on exhibition.
This is a plea to the jurisdiction OF
this Court to try infractions of County
Ordinances duly passed by the Board
of Supervisors of the County of Oahu
Several questions are raised by this
plea These may be enumerated as
follows:
/. Is this a matter upon which TINS
Court can or should pass?
g Has the legislature the power to
delegate legislative powers to tfta Board
of Supervisors of the County Of Oahu?
8. Has the Board of Supervisors OF
the County of Oahu the right to pass
ordinances of a criminal character?
T. Has the Board the right to pass
ordinances comforting the power to
punish by imprisonment, except as that
Imprisonment is a means to enforce the
payment of a pecuniary penalty?
3. Has the County any court in which
to enforce its ordinances?
6. Can it, in the absence of statute
covering the point, adopt court of the
Territory?
or criminal?
1t has been universally held by this
court and by many, if not all, courts of
similarly restricted jurisdiction that
matters relating to the powers OF legis-
latures, to the constitutionality of laws.
to the legality of de facto legislatures
and legislative bodies are not matters
to be tried before such courts. Even
where the act creating such inferior
courts does not expressly prohibit such
considera ton, as here in this Territory,
this rule will still be enforced. How
ever, when the matter of the Jurisdlc-
ton or want of jurisdiction of the court
is brought into direct question as by a
plea in bar to the jurisdiction such as
interposed in the case now under con-
sideration, it is not only the right, but
the duty of the court to decide. Espe-
cially must this be true in a jurisdic-
ton such as our own where the court
is given no power to certify such queS-
tions up to the supreme or to a superior
court for decision, but must proceed to
trial and determine the guilt or inno
cence of the person charged. Not only
has the defendant the right to such a
decision in the first instance and not
be forced to undergo the inconvenience
and ignominy of a trial and convic
ton before "a police magistrate, but that
ma gistrate himself, bound as he is to
civil liza bilities for any presumption of
power, has the right to protect himself
by a careful consideration Of his pow
ers, his jurisdiction, in every case
where such powers or jurisdiction IS
brought directly in question.
Has the Legislature the power to
delegate legislative powers?
This question, though raising very Sc
rious and vital objections. and though
strenuousIy urged by counsel for the
defence question which must sooner
or later be decided by some court hav-
ing the right to ultimately determine
the matter, still is of that class Of
questions which the eternal fitness of
things would seem to dictate that
district magistrate should not pass
upon. The presumption that such
power was rightfully used and did ac-
tually exist must remain until over
thrown by some higher court than
this
Has the Board of Supervisors the
power to pass ordinances of a GRIM
inal charac ter?
The consideration of this question by
this court is subject to the same objec-
ton as the last. The Board is given by
the County Act the right "to regulate
by ordinance within the limits OF the
County, all local police, sanitary and
other regulations and to fix a
penalty for the violation Of such ordi-
nances."
Such ordinances would he 'cf a GRIM
inal character as referred to in the ar