The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-08
WHAT WILL
Be SEIZED?
Execution Against Ter
ritory in Fishery
Test Case.

An odd state of affairs may presently
develop between the United States of
America and the Territory of Hawaii
with regard to the respective property
rights of the two governments in this
Territory. It 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.
A mandate of the Supreme Court of
the United States will be filed in the
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 the
Judgment of the Circuit Court, and to
remand the cause to that court with
directions to grant new trial. It is
given in the name of Chief Justice
Fuller and signed by Jas. Ell. McKen-
ney. clerk of the U. S. Supreme Court.
the Territory, with execution therefor,
is contained in the mandate:
cit is now here ordered and adjudg-
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-
ivfa n1-
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 $116.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 while ago had sold at auction
the old tugboat Eleu, the Attorney
General of the United States gave a
ruling that delivery of the vessel could
not be made to the purchaser, because
the Organic Act provided "that tho
public property ceded 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
managed and cared for by
it. at it's 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
of Territorial property
made since annexation are included in
he Federal claim of title thus declar-
ID is perhaps an open question STILL
At all events, Governor Carter, after
he tugboat episode, represented to the
authorities the necessity
If legislation on the matter, saying
hat as things stood the Territory
Gould not get rid of even a wornout
mule.
If the Territory does own any proper
Y on which execution may be levied
or the costs in the fishery case, per-
laps that white elephant, the garbage
is one such chattel. If it
s, the attention of the officer having
he process to serve might be directed
o that cause of friction between the
3oard OF Health and the Board or SUI
,ervisors. !
It was in 1902 that the fishery case
o which the mandate above mentioned
efers was decided, the Supreme Court
,eing constituted by Associate Justice
5albraith and Circuit Judges De Bolt
md Robinson. Chief Justice Frear and
Associate Justice Perry were by inter
st disqualified. The case was carried
o Washington as a test one and its
Ieeision settles certain law points in
Jolved in a number of other fishery
asses.
High Sheriff Henry will have a door