The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1909-08-20
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DOCTOR ATCHERLEY
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meet all of these requirements or 9TH
erwise the act is unconstituti onal The
weakness of this position Is that due
process of law does not require more
than one trial. The right of appeal
is not essential. The petitioner can
not complain that the legislature in
its anxiety to make it impossible for a
sane man to be committed TO the asy-
lum permits him a second trial, be-
fore the commissioners of insanity,
which the constitution does not guar
antee him. 1t is optional with him
whether to exercise the right so con-
ferred or to omit 10 do so. If he ex-
ercise it, he takes it as it is given
to him. We are not to be understood,
however, as in any way intimating
that the trial provided for before the
commissioners does not IN itself full
fill all the requirements of due pro-
cess of law. The only objection made
to it by the petitioner is that the
commissioners are not given the pow
er to compel the attendance of wit
nesses or to administer oaths. It may
be that by proper construction OF
the act such power must be held to
be conferred by implication, or it may
be that the procedure provided, not
withstanding the omission of such
power, is sufficient and valid Upon
these questions we express no opinion.
The petitioner further contends
that due process in the matter of the
committal to the asylum is denied him
in that a trial by jury is not permit
ted The constitutional provision I'M
der consideration, however, does not
of itself require continued adherence
to that method of trial, if such was
the sole procedure at the time of the
adoption of the constitution Other
provisions of the constitution secure
such trial in certain classes of cases,
but this case. is admittedly not with
in any of those classes. The law is
to a certain extent a progressive
science. 1t may be that originally in
England questions of insanity were
tried by jury called for the purpose
by the chancellor and it may also be
that in some jurisdictions in the Unit
ed States trials by jury in such cases
are required by statute, butt he con-
stitutional provision does not prohibit
the abandonment of that procedure
and the substitution of trial before
a board of experts or before a district
magistrate or circuit judge alone.
(3b) The specific objection, and the
only objection in this connection, is
that Sec. 10 of Act 149, read in con-
nection with Sec. II, prohibits an ap-
plication by an inmate, who has be-
come sane, for a hearing to determine
the question of his sanity. Again,
it may be that if any part of the act
is unconstitutional it is merely that
portion of Sec IA which provides that
no person shall be discharged from
the asylum except as in the act pro-
vided, in which event Sec. 10, not be-
ing in its terms exclusive, would still
be operative and would stand with
the remainder of the act, resort to ha-
beas corpus being then clearly posi-
BILE on the part of an inmate on whose
behalf no application had been made
by any relative, sheriff or deputy sher-
iff
Upon none of these questions, how
ever, do we express any opinion, for
even assuming that Secs. 10 and IA
are inseparable and unconstitutional,
| the remainder of the act should, in
our opinion, be sustained.
The reserved questions are answer
ed in the negative.
T. NJ Harrison for John Atcherley.
Lorrin Andrews, Deputy Attorney
General, for the Territory, and F. w.
Milverton, Deputy County Attorney
for the City and County of Honolulu
&c. R. Hemenway, Attorney General,
and J. W. Cathcart, County Attorney
with them on the briefly