The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-04-24

chief Justice Frear has received a
printed copy Of the recent decision OF
the Supreme Court Of the United states
in the cause entitled: Alfred w. Car
ter. plaintiff in error, vs.. George D
Gear, Circuit Judge, etc. In error 10
the Supreme Court of the Territory OF
Hawaii
This decision is more important 10
the Territory than was the celebrated
Mankichi case The latter dealt with
the criminal Jurisprudence here be-
tween annexation and the advent Of
the grand jury and unanimous verdicts,
al the worst involving peril of a con-
siderable Jail delivery. The case now
decided affected a vast deal of prop
erty rights in probate and divorce
DEGREES. since the coming into effect
of the Organic Act
A statement Of the case precedes the
opinion of The Court. which was de-
hvered by Mr.. Justice Brown. II was
a writ Of error to r-~iew a judgment
Of the Supreme Court Of the Territory
of Hawaii denying a writ of prohibi-
ton fled by A ". Carter against
Judge Gear and J. s Low, praying
that Gear be prohibited from taking
further cognizance Of Lows petition for
the removal of Carter as guardian OF
/ the estate Of Annie T Il Parker. a
minor Carter was appointed such
guardian September %, 1893 Lows
petition was fled July p. 1904 The
petition was fled before the Circuit
Judge sitting at chambers.
"A demurrer was interposed TO the
petition upon the ground that the Cir
cult Judge had no jurisdiction Of the
proceedings the preamble of the opin-
ion relates, for the reason that the
statute comforting judicial powers up
On the judges at chambers was in con-
| flict with the Organic Act Of the Ter
ritory- The demurrer was overruled
and the jurisdiction Of the Court sus-
| tanned. apparently with some doubt, by
the Circuit Judge
Then Carter petitioned for the writ
of prohibition and, after a full hear
ing. the Territorial Supreme Court af-
Court and dismissed the petition.
Whereupon Carter carried the matter
by writ of error 10 Washington
Mr. Justice Browns opinion in full
is as follows:
The single question presented by.
the record is whether the statutes Of
the Territory OF Hawaii purporting to
confer upon the judges Of the several
courts, AT chambers. within their re-
spective jurisdictions. judicial power
not incident or ancillary 10 some cause
pending before court. were in con-
fiict with Section 81 Of the act Of Con-
gress approved April so 1900 81 stat
141), commonly known as the Organic
Act OF the Territory. This section, page
157, enacIs that the judicial power Of
the Territory shall be vested in one
Supreme Court. Circuit Courts, and IN
such inferior courts as the Legislature
may from time 70 time establish. And
until the Legislature shall otherwise
provide the laws of Hawaii heretofore
in force concerning the several courts
and their Jurisdiction and procedure
shall continue in force. except as here
IN otherwise provided
AT the tine the Act OF Congress was
passed there was in force in the Ter
u nd - Oh Gil az 1-4tNl- a.
Chapter 81 OF the Laws OF 1892. the
thirty-seventh section Of which gave
TO the judges of the several Circuit
Courts. at chambers. very ample pow
ers. in admiralty. equity. bankruptcy
and probate causes, among which were
proceedings 10 remove any executor
administrator or guardian. This act
was conceded 10 be sufficient 10 justify
the action OF Judge Gear in removing
the guardian IN this case. II was sub
stantiaI!y re-enacted with amendments
in 1893
The argument IS made that Section
81 OF the Organic Act is identical with
the constitutional provisions of many
States under which similar statutes
purporting 10 confer judicial powers
upon Circuit Judges 81 chambers not
incident 10 or anclIlary 10 any case
pending IL any court, have usually
been declared unconstitutional; citing
Spencer Greek Water Co v. Vallejo
as Cal 10). Riser rs. Hoyt (55 Mich
$50. Toledo Ry- Co. IS Dunlap az
Mich $50 Rove vs- Rowe rs Mich
$50. Pitrsburg and r. r. Co vs- Hurd
az Ohio St ia. I4s}, State IS. Wood
son Is1 No. 444). We are also referred
70 Mcknight vs. James (155 I : $50.
eo11ld not go 70 an orcsr Of Judge
OF q Circuit Court made al chambers
But conceding the correctness OF
these decisions under the Constitutions
Of the several States and also con
cading that The Organic act stands IN
tha place OF a constitution for the Ter
r57orx OF Hawaii 70 which its laws
mus conform. does i follow that the
laws respecting proceedings Al cham
bars are IN excess Of the powers cor
fa~~ad under che Organic Act
Bearing n mind that Section s. q
the Organic ACT i but one Ct hun
dre6 sections all which ars entitled
=. a477a7 RESPECT j i evident that q
obtain z co-nQr ehensivs view q TIE n
ze115or Of Congress va are bound %
consider The whole acr - far as Il
relates 70 The disposition q judicial
power To sezrezate section 81 from
an The ether provisions Of The at must
-s-aese-=fx- -zzlE- n giving Z undue