The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-01

ious reasons. including those above
ne was released on bail pending. these
proceedings In view of the conclusion
L have reached regarding the alleged
repeal or modifca ton of Section 31Is
of the Revised Laws. hereinafter CfS-
cussed I deem it unnecessary to make
a more complete statement of the facts
than as stated above. or to consider
any other phase of the question SUBJ
mltted
The question thus presented how
ever. is. Was the judgment of cOnvic-
ton by the District Magistrate void
or not? Section 3179 reads as follows:
Ever person guilty of a misdemeanor
as provided in sections 5172-31S2, shall
be punishable by a fine OF not more
than one thousand dollars, or impris-
oned at hard labor not exceeding one
year"
1t is conceded by the Deputy Attor-
ney General that if this section is not
in full force and effect the petitioner
is entitled to his discharge. He con-
tends. however, that this section mas
been amended. the words at hard la
bor'' having been eliminated there
from by force of Acts 80, IS and SO.
in this view. OF course, the only
ground upon which the repeal can be
claimed is that by implication. I'm
piled repeats are not favored. one
statute is not repugnant to another
unless they relate to the same subject
and are enacted for the same purpose"
(Suth. st. Const., Sec 1881 1t will be
observed that Act SO relates only to
fines and in al and
amends Sections 1856. 1887 and 1883 of
the Revised Laws. To my mind the
sole purpose and legislative intent of
these sections and the amendatory
Act was and is obviously to provide
for the collection of fines and costs in
criminal cases. The Legislature was
only dealing with punishment by fine
and not by imprisonment. Acts IS and
50 are, in effect. the converse of each
other. and in no way, as it seems to
me- have any reference to Sec. 3179.
tSuth supra Sec. 143). Act IS provides
that no felon or person suffering in
famous punishment shall be confined in
Honolulu JAIL while AcG 50 provides
tt at no person held for trial Or as a
witness or for contempt or upOn con-
viction of, d misdemeanor shall be i'm
prisoneG in Oahu prison.
It will also be observed that these
Acts (33. So, 59) are affirmative and do
not contain repeating clauses AT
firmative statutes which contain no
reference to existing statutes. either
to amend or repeal them, import that
the Iawmaker has no conscious pur-
pose to affect them, unless by congru-
Gus addition" (Suth supra Secs. 147-
1922 Whatever view may be taken OF
the statutes of 1905, or whatever pos
sible construction may be placed upon !
them, the most that can be claimed is, |
that they deal with prisoners and con- |
victs after trial. They, in no way. |
have or make reference to or pur- !
port to regulate the trial, or change /
or prescribe the punishment to be i'm
posed by the court upon conviction |
therein. They speak to the Jailor. not
TO the court.
No person charged with a criminal |
offense should be jeopardized in his
rights, which are guaranteed to him
by the fundamental law of the land, !
by any such vague, uncertain and in
definite legislation as We find in these
Acts of 1905.
In my opinion Section 3179 of the
Revised Laws has not been amended
,r modified, but is in full force and |
effect. That being true, and the pun
shment therein prescribed, which may
Je imposed, being infamous in its ma
ure il follows that the judgment of
by the District Magistrate
vas and is void: First, because the
'tatute does not permit a sentence Of
without hard labor Ger.
rs. Savidge, IA Haw. 1860: and second.
because. under the Constitution of the
United States, in criminal offenses of
his character, there must be a pre-
eminent or Indictment of a grand
ury in a court of competent jurisdfc-
ion. The petitioner is discharged.
J. T. DE BOLT,
First Judge.
February %, 1906.
tated. And. upon being brought be-
ore the court in response to the writ