The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1907-06-14
JUSTICE M'KENNA
ON L0WREY CASE

In the ease Of Lowrey vs. the Terri
tory of Hawaii an action brought III
the Supreme Court of Hawaii to re-
cover from the Territory the sum of
$4,000 as an alternative Of the re-
conveyance of certain property convey
ed by the American Board Of Commits
sioners of Foreign Missions in is49 to
the Hawaiian government, for the non
fulflment of conditions upon which the
property was conveyed, Justice Mcken-
M rendered the following opinion OF
the court sustaining Lowrey. Castle d
Wilmington were Lowrey's attorneys
The contentious of the parties are
sharply in opposition as to the agree
ment and the necessity ami compe-
tency of extrinsic evidence to explain
IL. Appellee contends that we are con-
fined to the letter of the agreement,
and so confined its conditions have
been fulfilled. In other words, that
sound literature and solid science
are still cultivated, and that no reli-
gious tenet or doctrine contrary to
those heretofore inculcated by the MIS-
sion Is taught. or, to express the con-
tention in language other than that OF
the agreement, that a school devoted
to one subject of secular science and
which excludes all religious teaching
was contemplated by or is permitted
by the agreement. Opposing these
views, appellants contend that a mere
technical school does not fulfill the
agreement; that the terms of the
agreement require the "inculcation OF
general learning and knowledge" ac-
companied with religious instruction In
accordance with the confession of faith
submitted to the Hawaiian govern
ment. And, it is insisted, that If there
is anything doubtful in the agreement,
# may be interpreted by the circum-
stances which preceded 1t and the i'm
mediate and long-continued practise
under It. If we may resort to those
circumstances and that practise there
cannot be a shade of doubt as to the
intention of the parties. 1t is insisted.
however, by the appellee that the
agreement is clear and unambiguous
and that 1t does not present a case for
the resort to extrinsic evidence. We
cannot concur with this view. There
Is quite a range of meaning in the
words sound literature and solid
science" To interpret or specialize
them and make definite application OF
them would certainly receive aid from
the practise of the parties. 1t Is con-
tended by appellant that there was a
close connection between them and the
definite system of doctrine" which
was the central purpose of the Mis-
sion." We, however. need not dwell
further upon this contention, though a
plausible argument has been advanced
to sustain it, and we pass to the next
controverted contention. The words of
the agreement are that the government
shall not teach or allow to be taught
any religious tenet or doctrine con-
trary to those heretofore inculcated by
the Mission, a summary of which will
be found in the confession of faith
herewith enclosed ." Were these
words all there was of prohibition and
purpose as to religion? May we be-
lieve that it became suddenly the pur-
pose to change an institution which
had had its impulse and foundation in
religious zeal to convert the Hawai-
ians to Christianity and to educate
young men to be teachers of religion"
to one simply literary and scientific
and nonsectaran? Had the belief of
the Mission in its form of Christian
faith become so Indifferent that 1t
would transfer a seminary instituted
for the propagation of that faith with
no other condition than that contrary