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1
OPINIONS IN FULL
NATURALIZATION CASE.
Territorial Supreme Court Renders Decision that Circuit
Courts Have Power to Naturalize Under Organic
Act and Laws of the United States Judge Hart
well Dissenting.
OPINION OF THE COURT 1JY
WILDER, J.
(Hartwell, J., dissenting.)
Defendant was indicted for mur
der by a grand jury composed of
sixteen members at the August,
1905, term of the circuit court ol
the fourth circuit. He filed a plea
in abatement to the effect that eight
of the members of the grand jury
were aliens and therefore ineligible
and incompetent to act. It appeared
that some time between June '14.
1900, and August 1, 1905. each of
said eight grand jurors being en
titled to be naturalized applied for
a judgment of naturalization to the
circuit court of the fourth circuit,
and upon such applications being
considered the court pronounced
upon each of the applicants a judg
ment of naturalization.
The following questions were
certified to this court:
1. Had the circuit court of the
fourth circuit of the Territory of
Hawaii between June 14, 1900,
and August 1, I95. jurisdiction to
pronounce judgments of naturaliza
tion upon the eight aliens whose
names are ,set forth in defendant's
amended plea in abatemeut?
2. Was the grand jury em
paneled and sworn for the August,
1905, term of the circuit court of
the fourth circuit comprising six
teen members, eight of whom were
naturalized as aforesaid, a legal
body under the laws of this Terri
tory and competent to find a legal
indictment against the defendant?
3. Shall the defendant be held
to answer the indictment thus found
by said grand jury?
The main question for decision is
whether under the naturalization
laws of the United States and the
Organic Act of this Territory the
circuit courts of this Territory have
power to naturalize.
Section 2165 of the Revised
Statutes 6T the United States pro
vides that aliens may be naturalized
by a circuit or district court of the
United States, a district or supreme
court of a territory, or a court of
record of any state having common
law jurisdiction and a seal and
clerk.
Section 81 of the Organic Act of
this Territory provides as follows:
"That the judicial power of the
Territory shall be vested in one
supreme court, circuit courts, and
in such inferior courts as the legis
lature may from time to time
establish. And until the legislature
shall otherwise provide, the laws of
Hawaii heretofore in iorcc concern
ing the several courts and their
jurisdiction and procedure shall
continue in force except as herein
otherwise provided."
Section 86 of the same act pro
vides, among other things, as
follows: "That there shall be
established in fcaid Territory a dis
trict court to consist of one judge,
who shall reside therein and be
called the district judge.
Said court shall have, in addition
to the ordinary jurisdiction of dis
trict courts of the United States,
jurisdiction of all cases cognizable
in a circuit court of the United
States, and shall proceed therein in
the same manner as a circuit court.
The laws of the United
States relating to appeals, writs of
error, removal of causes, and other
matters and proceedings as between
the courts of the United States' and
the courts of the several states shall
govern in such matters and pro
ceedings as between the courts of
the United States and the courts of
the Territory of Hawaii."
Prior to its annexation to the
Uuited States the Republic of Ha
waii had a fully organized govern
ruent, including a judicial system,
coJisistiug of courts of original and
appellate jurisdiction, whose powers
W.T.
were 'defined by the constitution
and statutes of the Republic.
The relations between the federal
courts and the courts of this Terri
tory are similar to those betweed
federal courts and state courts.
Equitable Life Assurance Society
vs. Breton, 187 U. S., 308; Ex pattc
Wilder' S. S. Co., 183 U. S. 545;
Hind vs. Wilder' s S. S. Co., 13
Haw. 174. As was said in the last
case cited Congress "organized the
courts and distributed their juris
diction in this Territory as it has
done in no other territory, namely,
on the lines oi federal and state
courts in the several states." Page
182. On page 183 the reason for
this was suggested as follows: "The
fact that this Territory is so far
removed from the mainland is
ample to explain why Congress in
tended to make the judgments of
our supreme court final except in
cases in which a federal question
was involved, and to permit such
cases to be taken up only as they
would be taken up from a state
court, that is, by a writ of error
from the supreme court of the
United States." That reason was
approved in Equitable Life Assur
ance Society vs. Brown, supra, at
page 551, as follows: "Congress
may have considered that, owing to
the great distance of the Territory
of Hawaii from the continent, the
appellate jurisdiction over that
territory should be more restricted
than over other territories, and
should extend only, as in the case
of the several states, to judgments
against a right claimed under the
constitution, laws or treaties of the
United States." But whatever the
reasons were, the effect was as
stated.
Congress not having established
within this Territory the ordinary
territorial courts, and having pro
vided a system similar to that in
the several states, it follows that
the jurisdiction to naturalize in this
Territory should be and is the same
as in a state, namely, by a"court of
record having common law jurisdic
tion and a seal and clerk. Each of
our circuit pourts is a court of
record having common law juris
diction and a seal and clerk. That
this was the intention of Congress
we have no doubt, when it is con
sidered that Congress established in
this Territory a district court of the
United Slates, the same as is estab
lished in every stnte of the uuion,
and which has, of course, power to
naturalize.
Thf. privilege of becoming an
American citizen is a great one, but
the number of courts with jurisdic
to naturalize should not be limited
unless Congress expressly or by
necessary intendment so provides.
The tendency of congressional
legislation on the subject has been
to enlarge rather than to diminish
the number of courts which could
naturalize. See Ex parte Cregg,
2 Curt. 98. The very reason for
investing Congress with power to
establish a uniform rule of natural
ization was to guard against a too
narrow instead of a too liberal mode
of conferring citizenship. Collet vs.
Collet, 2 Dall. ,294. The statute
intends naturalization certificates
to issue from courts of record.
Spratt vs. Spratl, 4 Pet. 393, 408.
See also Mutual Benefit Life Insur
ance Company vs. Tisdale, 91 U. S.,
245. All courts look with favor on
proceedings to admit aliens to citi
zenship. McCarthy vs. Marsh, 5
N. Y. 284." See also Ex parte
Buttenvorth, 1 Woodb, & M. 223.
There is also considerable force
in the argument that the courts in
this Territory having practically
the same jurisdiction as the ordinary
territorial district courts, namely,
j the district court of the Uuited
States and the circuit courts of the
Territorry, have the power to
naturalize. In Ex parte Lathnp,
118 U. S., 113, the legislature of
the Territory of Arizona created
and established a county court with
concurrent jurisdiction with the
district courts, the provision in the
organic law of Arizona being that
the "judicial power of Arizona
shall be vested in a supreme court
and such inferior courts as the
legislative council may by law pre
scribe." The power of naturaliza
tion was expressly given to this
county court.
It was held this court was an
inferior court and that its jurisdic
tion could be made concurrent with
that of every other court inferior to
the supreme court. No comment
was made upon this express power
of naturalization. But, in view of
the conclusion reached that any
court of record in this Territory
having common law jurisdiction
and a seal and clerk has power to
naturalize, it is unnecessary to say
whether our circuit courts are
territorial district courts within the
meaning of the naturalization
statute.
Defendant further contends that,
even if the circuit court had juris
diction to naturalize, still the grand
jury was improperly constituted,
because it does not appear that the
eight members of the grand jury in
question were naturalized before
they were drawn to serve and that
they might have been naturalized
after having been selected. But
the burden in on the defendant to
show that they were aliens at the
time they were drawn, and, as he
has not done that, the presumption
is that they were citizens at that
time.
Each of the three reserved ques
tions is answered in the afirmative.
M. F. Prosser, Deputy Attorney
General, for the Territory.
Carl S. Smith for defendant.
CONCURRING OPINION OF
FREAR, C. J.
The statute (Rev. Sts., Sec.
2165J permits naturalisation by "a
circuit or district court of the
United States, or a . district or
supreme court of the territories, or
a court of record of any of the
states having common law jurisdic
tion, and a seal and clerk." Thus
the jurisdiction is conferred on
federal, state and territorial courts.
If the circuit courts of this Terri
tory have it, it must be because
th'ey are "district courts" of a
territory within the meaning of the
statute. The question then is,
whether the word "district" in the
statute is a word of description or a
proper name. If it is the latter and
refers only to such courts of that
name as have been created by Con
gress in other territories the statute
does not apply to our circuit courts.
If it is descriptive there is no reason
why it should not apply.
There is little in a name. Our
district courts' corresponding most
nearly to justices' courts elsewhere
do not have jurisdiction to natur
alize although they are "district
courts" of a territory, nor could
our territorial legislature confer
such jurisdiction upon even a court
of record of general jurisdiction by
merely calling it a district court.
Even the United States district
court of Hawaii does not have this
jurisdiction because it is called a
district court, though by Act of
Congress, because on the one hand
it is not a district court of the
United States in the sense of a con
stitutional court, for it is a legis
lative court just as our circuit
courts are, nor on the other hand is
it a .district court of a territory, for
not only does it not have the juris
diction of such a court in general,
but it is a court for the entire Ter
ritory. It has such jurisdiction
because it has been expressly given
the jurisdiction of a circuit and dis
trict court of the United States.
It is true that our circuit courts
differ from the district courts of
other territories in various respects.
For instance, they are presided
over by their own circuit judges
and not by judges of the supreme
court assigned to the circuits or
districts. 1 hey also do not have
the combined federal and territorial 1
jurisdiction, but are more like state
courts in having the local jurisdic
tion only. But they are courts of
record of general, original, common
law jurisdiction, and there is no
reason why Congress, in distribut
ing the two classes of federal and
territorial jurisdiction between two
sets of courts in Hawaii, instead of
combining them in the same courts
ns elsewhere, should not have in
tended that each set should have
jurisdiction to naturalize. There
can be no doubt that the supreme
court of this Territory has such
jurisdiction, although that, equally
with the circuit courts, has only
territorial and not federal jurisdic
tion. The name "circuit courts"
was ictaiued by Congress because
that name was already in use here.
That the word "district" should
be construed in a descriptive sense
with reference to territories, is sup
ported by the fact that Congress
itself so construed the same word
with reference to the states when,
after, conferring jurisdiction to
naturalize upon the "supreme,
superior, district or circuit court of
some one of "lie states" by the act
fof 1795, it provided as follows in
the act of 1802 (2 St. at L., p. 155):
"And whereas, doubts have arisen
whether circuit courts of record in
some of the states, ar.e included
within the description of district or
circuit courts. Be it further en
acted, that every court of record In
any individual state, having com
mon law jurisdiction, and a seal
and clerk or prothonotnry, shall be
considered as a district court within
the meaning of this act."
Not only is there no objection to
the exercise of such jurisdiction by
the circuit courts, for similar courts
throughout the states and territories
exercise it, but it is particularly
desirable that they should have it
because in four of the five circuits
of the Territory the supreme court
cannot sit and in three the United
States district court does not sit
and in one of the other two the
latter court sits only once a year,
although it is permitted by the
statute to sit at other times and
places; and such time and expense
would be required for the attend
ance of applicants where such courts
usually sit as would in many in
stances be prbhibitive. Such juris
diction has been exercised by the.
circuit courts ever since the estab
lishment of territorial government
and probably the majority, about a
thousand, of naturalizations, have
taken place in those courts. I
believe the exercise of such juris
diction by the circuit courts was
begun on the suggestion of Uuited
States District Judge Estee, and
more recently an application to his
successor, Judge Dole, for natural
ization by one whose naturalization
by a circuit court had been ques
tioned, was denied.
DISSENTING OPINION OF
HART.WEU,, J.
Congress alone can authorize a
court to naturalize aliens. The only
authority by which aliens can be
naturalized in Hawaii is that which
is granted to the federal court and
to "a district or supreme court of a
territory" by Sec. 2165, U. S. Rev.
Stat. Unlike our circuit courts
territorial district courts in other
territories than Hawaii are held by
one of the justices of the territorial
supreme court and, by act of Con
gress, have jurisdiction "of all
matters and causes except those in
which the United States is a party,"
including therein admiralty and
bankruptcy matters.
It would be convenient to resi
dents upon other islands than Oahu
who desire to become naturalized
to be able to go before the circuit
courts upon those Islands for that
purpose although the federal court
has authority to hold terms in any
circuit whenever applications are
pending there in sufficient number
to justify the holding of a term.
Probably Congress will amend the
Organic Act to give our circuit
courts the power to uaturalize,
which at present they do not have
unless we regard them as included
in the term "district courts of a
territory." This cannot be done
without changing the clearly ex-
pressed language of an act of Con-
gress, doing this upon the theory
that the act means something diff
erent from what it says. Every
departure from the clear language
- wKIn
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of a statute is in effect an assump
tion of legislative powers by the
court. Brewer vs. Bloughcr, 14
Pet., 178. Whenever harm or ab
surdity results from taking a statute
to mean just what it says all reason
able effort ought to be made to
evade the literal meaning on the
ground that Congress is not pre
sumed to have intended such re
sults, but here no such results will
occur from restricting naturaliza
tion to this court and the federal
court; the only loss would be in
costs which have beqn paid by
those who have become naturalized
in circuit courts and in cases of
rcuaturalization such costs ought
to be remitted. Undoubtedly it was
an oversight that the Organic Act
did not at first give this power to
our circuit courts, but we have no
authority to supply the omission.
"A case which has been omitted is
not to be supplied merely because
there seems to be no good reason
wliy it should have been omitted,
and the omission appears con
sequently to have been uninten
tional." Endlich, Int. St. Sec. 18.
For this court to declare that circuit
courts have jurisdiction for the pur
pose of naturalizing aliens would be
proctically the same as enacting a
law to that effect, doing this upon
the theory that Congress intended
that our circuit courts should have
like powers with state courts of
record in respect of this matter of
naturalization; or else upon the
theory that Congress really meant
that our circuit courts should take
the place of the district courts in
the other territories. There is no
reason why this court should in
dulge in auy presumptions concern
ing a statute which is so clearly
expressed as to leave no occasion
for its interpretation or construction.
As I regard the statute as too
clear to admit construction of its
meaning and as its express language
does not authorize naturalization
by our circuit courts, I am unable
to concur in the opposite conclusion
of the court.
Speuks Well of Chnmberlnlirs Cough
Itomcdy.
Mr. John Main, Manager for P.
J. Petersen & Company, Bloeinfon-
teiu, So. Africa, makes the follow
ing statement for the benefit of the
public: "Chamberlain's Cough
Remedy has a big sale here and as
we have been handling it for several
years, we can confidently say that
we sell more of it than we do of
any other peparation of that kind
"This medicine is especially recom
mended for coughs, colds, croup
and whooping cough and can be
given to the little ones with abso
lute security. For sale by Hilo
Drug Co.
Dr. Thorley, a medical town
councellor at Bolton, England, calls
small bed rooms death traps, and
the council is seeking parliamen
tary powers to prescribe a minimum
cubic space for bed rooms.
Subscribe for the Tribunk
Island subscription $2.50 a veai.
lttil'OKT OF CONDITION
01' THR
FIRST BANK OF HILO
IJMITI5D
Close of Business December !I0, lOOfi
RESOURCES
Dills receivable f306.668.67
Cash loans , 4.931.35
Ileal cbtate 3,029.37
Furniture ami fixtures 5.7.17.66
Other assets ,, 8,718.53
Due from banks ...'..., 40,173.53
Cash 50.637.96
f418.8q6.96
LIABILITIES
Capital paid iu (143,500.00
Surplus and undivided profits 36,343,58
Deposlts.T. , 349,970.08
Due to banks j 184.30
418,89X96
I, C. A'. Stoble, Cashier, do solemnly
swear that the above statement is true to
the best of my knowledge and belief.
C. A. STOBIE, Cashier.
Examined and found correct:
C. C. KENNEDY )
V. S. LYMAN I Director.
CARL S. SMITH J
N. C. ILLI'ONG, Auditor.
Sworn to before me and subscribed in
my presence by C. A. Stoble, Ibis 15II1
dy of January, A. D., 1906.
W. S. WISE,
Notary Public 4th Circuit. T. II.
Pure blood mako3 the skin
clear, smooth, hoalthy.
Impure blood blotches tho skin with4'
pimples, sores, boils, oczema, eruptions.
Mr. 0. W. Burtnor, Kecr.letown, Va., tells
of the bad condition he was in, and how
he was cured by
Ayer's
Sarsaparilla
"Shortly after tearing college, I was
troubled with a skin disease which showod
itself first at tho ankles, l'hytlclans pro
nounced It eczema, and treated me for that
complaint. Tho eruption crept slowly up
my limbs, and on tho body, until It enrcl
oped tho wholo frame. It gavo ino Intlnlts
trouble, with constant Itching, cast Ing off ot
dry scales, and a watery liquid which would
exude from under tho scales. I treated It
for orcr tlireo years unsuccessfully, nnd was
unatflo to check It until 1 began lining Ayer's
Sarsaparilla. I used three bottles of tbki
medicine, nnd was completely curod my
skin becoming as smooth and cleAr as
before."
There are many imitation
Sarsapanllas.
Be sure you get "AYER'S."
Prtpmd bj Dr. J. C. Aycr Co., Lowill, Mm., U.S. A.
For Sale by HILO DRUG COMPAhYj
Hilo Railroad Co.
Short Route to Volcano
TIME TABLE
In effect July i, 1905.
Passenger Trains, Except Sunday.
7
A.M
9
P.M.
8
A.U.
10
P.M.
545
540
5:35
5:i5
455
4:35
4
P.M.
5H5
Sill
4:j6
4' l
4:35
4:35"
4:oj
STATIONS
7:00
7:05
3:30
2:35
3!53
3U5
3:30
lv Hilo
ar..,.Waiakea..
ar...01aa Mill..
ar Keaau....
ar... Ferndale ..
ar-Mouut. V'w.
9:40
9:35
9130
9:i5
7:33
7:30
7
8:00
8:30
9:00
8:50
3:55
4:i5
ar.. Glen wood..
Syo
1
A.M.
3
P.M.
3
A.U.
10:48
104
I0:s8
10:23
I0:o6
955
9:35
SUNDAY:
8:00
8:06
S5
3:30
lv Hilo ,
ar....Vaiakea ..
ar...01aaMill
or Keaau.,..
ar... Ferndale ,.,
3:36
2:55
3:03
3H9
8:32
8:49
9:03
935
3:35 ar-Mount. V'w.
3!55iar... Glenwood..
FOR PUNA:
The trains of this Company between
Hilo and Puna will be run as follows:
WEDNESDAY:
Leave Hilo Station, by way of Rail
road Wharf, for Olaa and Puna, upon the
arrival of the Steamship Kinau, running
through to Puna and stopping at Pahok
13
A.M.
14
A.M.
9:55
9:50
9:30
9:10
842
8:30
7:3s
6
P.M.
4:40
4:35
4H5
347
3.35
FRIDAY:
6:00
"6:06
6:s8
6:58
iv lino ar
ar.R. R. Wharf.ar
ar....Waiakea....ar
ar...01aa Mill...ar
ar..Pahoa Juucar
ar...- Pahoa ...ar
ar Puna lv
7:30
5
A.M
9:00
9:06
95
9:50
10:30
IO-.55
SUNDAY:
lv Hilo or
ar..,.Waiakea..,ar
ar...01an Mill...ar
an.Pahoa June...
ar...... Pahoa. .....ar
or Puna lv
3:00.
Excursion tickets hetwrpn nil rvnlnt.
are sold on Saturdays nnd Sundays, good
ciuruing, uiuii iuc louowing Monday
noon.
Commutation tickets, good for twenty
five rides between anv two nninta. anil
thousand mile tickets are sold at very
low rates.
D. E. METZGER,
Superintendent.
mmimmmmmmmmniiim
For Elegant
Society
Stationery
Invitations ;
Programs
Announcements
Call at Tribune Office
aiiiumiuiiiiiiiiiiiiiiiiiamim
ALL KINDlJ OF
RUBBER GOODS
GOODYEAR RUBBER CO. ,r-,;JL
R. H. PEASE, President. Hff
SAN FRANCI3CQ, CAL., U. S, A, M$f
'd&
' 1W
" c.Wl
'-,;
'. M
. if"1
'ink
Lm
Aw3j.
