The Hawaiian gazette., 1906-03-09
WHAT WILL
BE.SE|zED?

An odd state of affairs may presently
develop between tine United States of
America and the Territory of Hawaii
with regard to the respective property
rights of the two governments in this
Territory. 1t looks as if the United
States will have to attach property,
in which itself claims absolute title, TO
satisfy an execution against the Ter
ritory. That would be funny.
mandate of the Supreme Court of
the United States will be filed in tho
Supreme Court of Hawaii this morn
ing, in the suit of the Bishop estate to
establish vested right. under the pro-
visions of the Organic Act, in certain
sea fishery. This instrument remands
the case to the Supreme Court of Ha-
wall with directions to reverse tho
Judgment of the Circuit Court, and to
remand the cause to that court with
directions to grant new trial. 1t is
given in the name of Chief Justice
Fuller and signed by Jas. ii. McKen-
ney, clerk of the u. S. Supreme Court.
The following order for costs against
the Territory, with execution therefor,
is contained in the mandate:
ed by this court that the Judgment of
the said Supreme Court in this cause
be. and the same is hereby, reversed
with costs; and that the said plain
tiffs, Joseph o. Carter ct al, trustees,
ETC., recover against the said de-
PENDANT one hundred and sixteen dol
lars and eighty-seven cents for their
costs herein expended and have exc
cution therefor
Now there is no appropriation by the
Legislature to pay the $ll6.S7 costs,
hence the money cannot lawfully be
drawn from the treasury for that pur-
pose. So execution must follow. There
is where the rub comes.
When the Superintendent of Public
Works a while ago had sold Mt auction
the old tugboat Eleu, the Attorney
General of the United States gave
ruling that delivery of the vessel could
not be made to the purchaser, because
the Organic Act provided "that the
public property coded and transferred
to the United States by the Republic
of Hawaii under the joint resolution
of annexation, shall
be and remain in the possession, use
and control of the government of the
Territory of Hawaii, and shall be
maintained, managed and cared for by
it, at its own expense, until otherwise
provided for by Congress, or taken for
the uses and purposes of the United
States by direction of the President or
of the Governor of Hawaii
Whether or not additions and inn
provements of Territorial property
made since annexation are included in
the Federal claim of title thus declar
ed is perhaps an open question still.
At all events, Governor Carter, after
the tugboat episode, represented to the
| Washington authorities the necessity
| of legislation on the matter, saying
that as things stood the Territory
| could not get rid of even WORKOUT
mule.
If the Territory does own any proper
( ty on which execution may be levied
| for the costs in the fishery ease, per-
haps that white elephant, the garbage
crematory, is one such chattel. If it
| is, the attention of the officer having
| the process to serve might be directed
| to that cause of friction between the
Board of Health and the Board of SUI
pervisors.
1t was in 1902 that the fishery case
to which the mandate above mentioned
refers was decided, the Supreme Court
being constituted by Associate Justice
Galbraith and Circuit Judges De Bolt
and Robinson. Chief Justice Frear and
Associate Justice Perry were by inter
est disqualified. The case was carried
to Washington as test one and its
decision settles certain law points in
volved in number Of other fishery
| casey.