The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-07-07
No CONFL|C OF
LAW SAYS COURT
Judge Robinson 0verrules De-
murrer in the Martin
Case.

Judge Robinson yesterday overruleC
the demurrer interposed to the indict
ment against Blanche Martin. The
principal ground of demurrer urged by
A. S. Humphreys, the woman's attor
ney. was that section 3151 of the Re
vised Laws of the Territory of Ha
wall, the one under which the defend
ant was indicted, is inconsistent with
the Constitution and laws of the Unit
ed States and was not continued in
force by section of the Organic Act
of Hawaii.
After stating the case fully, Judge
Robinson directs himself to this con-
| tention, and says:
1t is well.known rule of construc-
ton, expressed in the maxim, eek
pressio unius, exclusio alterius est
that the express mention of one act,
condition, stipulation, class or number,
person or place, implies the exclusion
| of another, or others, not mentioned.
| This rule restricts what is implied by
what is expressed; what is general bv
L
counsel s contention that it was the
purpose and intent of Congress in the
passage of the Organic Act that all
acts of Congress applicable generally
to the territories of the United States
and those places over which the Unit
ed States has exclusive jurisdiction,
should apply to as well to the Terri
tory of Hawaii, is correct, the express
in,
statutes of general application, to
which attention has been called, as
being applicable to the Territory of
Hawaii, would have been idle and a
mere waists of words.
1t is also a well-known rule of con-
struction that particular statute must
prevail over a general one where their
provisions are inconsistent or irrecon-
cilable, and in the case at bar the
Organic Act of this Territory, being a
special statute, having particular ref
erence to the Territory of Hawaii, it
must be assumed that Congress, at the
time of the passage of the Organic
Act, had especially and particularly in
mind the purposes and objects sought
to be accomplished by the legislation
then proposed, rather than the pur-
plished by a general statute passed
thirteen years prior to that time.
In my judgment, the provisions of
section 10 of the Organic Act, being
the last expression of the legislative
intent, tend strongly to show that it
was the intent and purpose of Congress
that acts of Congress, of a punitive
character, at least, of general appliea
ton to the previously organized ter
ritories of the United States, and also
those places over which the United
States had exclusive jurisdiction,
should not have such an unqualified
and unlimited operation in the Terri
tory of Hawaii. If this were not the
purpose and intent of Congress, what
occasion was there for providing fur
Their in said section 10 that certain
statutes of general application to the
territories of the United States and
those places over which the United
States has exclusive jurisdiction,
should also extend to. and be made ap-
plieable to, Fhe Territory of Hawaiie
There is nothing anomalous or IN |
congruOus in the view that courts OF
entirely separate and distinct jurisdic-
ton may possess concurrently the right |
to hear and determine criminal or other |
causes arising under different statutes, |
but of similar import, purpose and eff |
feet, enacted by distinct and separate
legislative bodies, even where such |
statutes severally penalize the same |
act, and there need be no apprehension
of any conflict in jurisdiction or of |
authority between the several courts, |
as it is a we'll recognized rule of jul |
dicial ocedure that as between |
courts of concurrent jurisdiction, the |
court first acquiring jurisdiction OF the
person or persons to, or the SUBJECT
matter of, any action or proceeding, |
shall be permitted to retain such Ju-
risdiction, without, let or hindrance
from the other, until the final deter
mination of such action or proceeding. |
And this rule of judicial procedure is
fully recognized both by the United |
States courts and the State or Terri |
torial courts in their relations with |
each other.
Nor need there be any apprehension |
that any constitutional question would |
necessarily be involved, on the ground
that man might be put twice IN
ieopardv for the same otfense, contrary |
to the provisions of the Fifth Amend |
ment to the Constitution of the Unit |
ed States. AS was we'll said by the |
Supreme Court of this Territory, speak |
inc through Mr. Chief Justice Hart |
well, in the case of Territory VS.. Nc |
Candless, IS Hawaiian, at page 622, in
commenting on the decision Of the Su-
preme Court of the State of California |
in the case of In re Sio, 73 Cal, 142: |
'.This decision seems right. But the
court drifts into a constitutional dis |
cussion which seems wholly unneces- |
sary 1t assumes that if it held the |
ordinance valid man could be pun |
ished twice for the same offense. This !
does not necessarily follow, because, !
while this was held by Cooley, a large |
number of courts held that where an /
ordinance was valid, and because it is I
valid, conviction under it may be /
pleaded as a bar to the prosecution |
under the State laws.
In my opinion, the Congress of the |
United States in the passage of the |
Organic Act of the Territory of Ha- |
waii, intended to and did in fact con-
Co. ,,,,o,, +ba IariCIatura of the Ter |