The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-03-14

| forth t'the source, nature and extent
! Of the title claimed by defendant"
meaning his present title, nor such
further particulars as shall fully ap-
prise the court of the nature of de-
| PENDANTS claim" It is impossible to
| say from the statement whether the
t defendants assertion of its belief that
| the title was not in the Territory. not,
suggesting where it was, was mere
pretext to obtain longer possession
rent free or was based upon facts
which would require the district court
| to pass judgment upon the title. The
statute provides a summary method of
! recovering possession Of land and
should receive such reasonable con-
struction as will not nullify its in
j tended effect by enabling tenant: to
prolong the suit by unfounded pleas.
/ The plea was properly not received by
the district court owing to the insult
fciency of the affidavit.
| (2l The claim that the action ought
to have been brought and entitled in
the name of the Territory by the At
torney General is based upon Sec. 1909
r. L. which authorizes the Attorney
/ General to bring suits for the Territory
| in order to obtain possession of any
! specific property, real or personal, and
| that ''aIl such suits shall be entitled
| in the name of the Territory by the
| Attorney General of the Territory"
This action, however, was not brought
under this section and it is contended
by the defendant, in the absence of
any showing that it was brought with
| the approval of the Governor, the ac-
ton was not brought under Sec. 285
r. L. providing that the commissioner
of public lands with the approval of
the Governor may take possession of
the demised premises in case of vio-
1ation of any of the conditions Of a
general lease. The approval of the
Governor is not required to be in writ
ing and may properly be presumed to
have been given. The law (Sec. 272
r. Id places with the commissioner
of public lands the general supervision
of all public land which was coded to
the United States by the Republic Of
Hawaii, which included (Sec SO Org.
Act the portion of the public domain
heretofore known as crown land Sec.
273 r. L. expressly authorizes the COM
missioner's sub-agents to bring such
actions as this and implies, especially
in the county of Oahu where there are
no sub-agents, that he may bring them
himself. The Territory is proper
party to bring suit to recover possess
sion of the land and the action may
be brought in the name of the Ter
ritory by the commissioner of public
lands.
CD The statement in the demurrer
that the complaint does not show the
defendants succession to the lessee's
title is untrue in fact. The objection
that the complaint does not show the
title to be in the Territory is not sus-
tanned, the court taking judicial no.
tice, and it being unnecessary to aver,
that the title in the lands formerly
known as crown lands is now in the
United States and the Territory is by
law entitled to reenter and recover pos
session for nonpayment of rent. Wig
more, Evidence, Secs. 1866, 2572, 2575;
| Thayer, Evidence, 2S3; U. S. V. Are
dondo, 6 Pet. 40; u. S. v. Perot, SO
u. S. 42S Judicial notice of laws pre-
vailing in countries acquired by the
United States I'D to the time of ac-
quisition); u. S. V. Chaves, 159 u. S.
452, 459 Judicial notice of laws of
Mexico prior to cession by treaty..
The complaint is defective in aver
ring that the Territory made the lease,
defect which is pointed out in the
demurrer, butt the lease, which is made
part of the complaint, shows that ii,
was made by the crown land COM
missioners in 1882, and averring that it
was made by the Territory may be
| regarded as "a mere clerical error
which is corrected by papers which
by reference are made part of the plea
and will not render the plea detective
Briggs v. Thayer, 81 VT. 433. It is a
defect i'm form which is harmless in
view Of the fact appearing by the lease
and, if the demurrer had been sus-
tanned on this ground, could have been
amended.
AS above stated, it was unnecessary
to aver the title of the Territory in
that portion of the public lands which
at the date of the lease were known
as crown lands since judicial notice is
taken that by Art 95 of the constitution
of the Republic of Hawaii the crown
lands were declared to be the property
of the Hawaiian government and that |
by the public land act of 1895 those
lands as part of the public domain |
were placed under the management of |
the commissioner of public lands, a |
title which was recognized by the joint |
resolution of annexation, the lands |
having been ceded by the Republic of |
Hawaii to, and accepted by, the United |
States, and also recognized by the Or |
ganic Act (Sec. 83) in continuing in |
force the land laws of the Republic of |
Hawaii, and (Sec. 99) declaring that |
the crown lands ON August u, 1898, |
were, and prior thereto had been, the |
property of the Hawaiian government.
The validity of the declaration in the |
cnstitution of the Republic of Hawaii, |
under which the present title is de- |
rived, does not present a judicial cues |
ton. Even assuming, but in no way
admitting, that the constitutional |
declaration was confiscatory in its ma
ture, this court has no authority to |
declare it to be invalid. The subse- |
quent derivation of the title by the |
United States. as above stated is clear.
The position here taken in refusing
to regard the defendants claim that |
the title is otherwise than is fixed by
constitutional law as presenting a |
judicial question is well illustrated in |
numerous decisions of the United |