The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-05-11

Test Case Is Appealed
to the Supreme
Court.

An appeal has been perfected By
Benson, Smith & Co., Ltd, from the
| District Court Of Honolulu to the Su
preme Court in the corporations exhibit
| test case. It is in the following terms:
"To the District Court of Honolulu
Island of Oahu, Territory of Hawaii; to
the Territory of Hawaii, and to E. c.
Peters, Attorney General of the Terri
| tory of Hawaii:
You, and each of you, are hereby
notified that George W. Smith, Samuel
l.. Rumsey, Alexis Jean Gignoux,
James G. McGill w C. McGonagle and
James A. Kennedy hereby give notice
of their appeal, and do hereby appeal,
from the decision and judgment of the
said District Court of Honolulu, en-
| tered on the sth day of May, A. D.
1906, under and by the terms of which
the said defendants were adjudged
guilty of violation of the laws of the
Territory of Hawaii, as set forth in
the complaint herein, and under and by
the terms of which they, the said de-
PENDANTS, were sentenced to pay a fine
of one dollar each and costs.
"And you, and each of you, are here
by notified that said appeal is made to,
and said appeal is hereby made to.
the Supreme Court of the Territory of
Hawaii, directly upon the following
points of law, to wit:
First. That the said District
Court erred in overruling the defend
ants demurrer to the said complaint
''Second. Because, under the facts
established in said cause, the said Dis
trict Court should have held and de-
termined that the said defendants Were
not guilty of any crime under the laws
of the Territory of Hawaii.
"Third. Because the penalty pre-
scli5ed by Section 1865 of the Revised
Laws of the Territory of Hawaii has
no application whatever to failure on
the part of any corporation, or any Of
fcer thereof, to file the exhibit required
by Section 2566 of said laws; and that
no penalty, as prescribed by Section
1865, can be inflicted for such failure
{" Fourth. Because Section 1865 of
the Revised Laws of the Territory OF
Hawaii, as shown by the records, of
which the court should and will take
judicial notice, is not law of the Ter
ritory of Hawaii, never having been
passed in a legal manner by the Legis-
lature of the Territory of Hawaii.
Fifth. Because the penalty pre-
scribed by Section 1865 of the Revised |
Laws of the Territory of Hawaii has
application only TO acts required pre-
liminary to the issuance of charter |
of incorporation, and not to acts re-
CURED of q corporation, or any officer |
thereof, subsequently to the legal issue
of a charter.
George w Smith, Samuel L. Rumsey,
Alexis Jean Gignoux, James c. Nc
Gill, w G. McGonagle, James A. Ken
nedy, by their attorneys, R. W..
Breckons, S. B. Kingsbury.''
In reality the fight against the cor
porations exhibit law, or purported law,
is being made through Benson Smith
& Co, Ltd, by the Honolulu Mer
chants Association. 1t involves the
validity, not only of the section under
which the Territory prosecuted that
but of new provisions gen
,rally in the Revised Laws, upon the
urning point of whether such new pro-
7isions were constitutionally enacted
~ the Legislature through the passage
If blanket enabling act to ratify the
work of the Code Commission. This
question may not be decided in this
ase, however, as the Supreme Court
nay sustain the appeal on the specific
Joint raised that Section 1855, R. L.,
las no application to failure on the
art of a corporation to file the exhibit
equired by Section 1856.