Newspaper Page Text
&.- Jth. " a-.
J1MjMaiawFSi'4Ktfi,3,H.., HiniBfwiMJtiiSlrliiii rVThr'Tii n m'j
New Millinery . at
104 Eort t
On Saturday Next, October 25
13t ALL AHE
HVD1A RICE MILLS
107, 109 & 111 FREMOKTT STREKT
I vnptit Btwl t tTh tliMr ( anal i t ,n il l Knlir rrt hv flr
iraiiv)1ireMilil.o(to For 'iliur nilinMBnd or WorLtln i oiand an n railed Thf Yield ml these
Hlita.'I iKm&d of M iiiuuMe Kit fnun 1W l'ddv m cnniin toqultij 1 tlif 1'sddr, whicu
! I4i.tf Dth4MiIfc Uteehnn.,! - ant) iroprovimenlr the rroprlctoi
Is enabled to Largely Reduce the Rates forthe Hulling &-Cleaning-of Paddy.
AJKIMITIIKJIAM All .INTA(il 1)1' MUITIMI IMHII1 TO.A.TI!lSfISUI
am iiaii.m. it at tjii: nix ritvM'ist" mills,
. iiii: jiiv in: .sami.ii?
lal ol Wort. ill hso Franctfci'
tlir'jlclil T Alenl ' )'
of r. tJi pTCMl'
Srd jMitlutr In lltrfr lit.) in.'atil loaainp
4lh a'rmliiif null lninr n lcam of
CONSIGNMENTS OF PADDY SOLICITED.
Win. M. GEEEJN"WOOD,
New by Laf e Arrivals
FROM SAN FRANCISCO,
NEW YORK & ENGLAND,
Received by Castle & Cooke
ALSO, TO ARRIVE BV VESSELS DUE FROM ABOVE PORTS, AND
Toby. Nm atMWEST RATES
Suitable for Piantations.Country Stores
UrPAMllilKS. Orders Filled at Shortest Notice and with Satis-faction
to J'lircliiisers. Attention i Called to Our
Improved Paris PL O "W
T1IEONLI otMIM I' MUM now, KADI. OF I1)USHfct C.UsT bTEEI., km. GnwanlHd
Lqul IT not H'tnr than n Mtel Jireakloc IMow in tb Mik.Lt Alro, other raakts vf
Plow on lUiid r Moliflr l'luw Co . Jtrtin JC t.o , . (Jo I'Jown,
Hot-'' Hue I'iMn i .H, Can Ktrtrrf, made f tet ltcl lo our order l'laDlerMloev,U. 1 Sand S.cjtL
Snathe A&eaad Ink MattncVo.ricK. Hoe. Adze O-o, Axe and other handle; Iialdwit. Iced Ciittirr.
calher Rio ijMnrb. bcel qualftT, ludullobber Ho. i 1 1U. lit andS inch, Oi lokce
OxBowi Axle, for hom and tnulfCHrt, Portable Forget. Eaglr Anili Canal Bairowe,
Soanttone and Abetot strau Pafkliu: llett JUt India Uohber Mcitn PacMl p J I fct iuch,
ItahbetMrLal, Lac Iathr aud India Meatn Parking nmtd and mjuc, alt size
AtbcetoilWIleTt Meam Pip tl , Marhinerr OUe i lard cator and cJindir Ntats Oil,
DISSTON'S CELEBRATED SAWS.AND FILES, ALL SIZES:
JrrJL Jackeon r and MuMi f Kilep. IlammiTF rorCarjeMersv"3JacBini,IUackiatLhal, UorFCtlitKre.
t uand Vroaxrht Nal a'Uijip IIor and Jtole Shoe Nails, Galv Naili-, Cnt ht4ki Ilorspj: Mule bho c
Latest Iniirovemeiits in Shelf Hardware
llvbhucV TLUil at Vt rr Low Kate Hubbuck e Whl.e and lied h fide. Zinc, Small Paint- in Oil
UlakeMannfMrtaruir. Mniti l-td Irricaiinc and &clluu, Inuiw, ifton I'aicnt UcntrtfnxaU
Ytirr V alo W in. tTaltamced KooCnfo
STAPL.i X FJL"5?' CS- O O 25 S
trn jiip P nd Sot, litkinc'
l.mwti ana uieariiro Jfrut
A I ine AM)ortm nl uf W t laurl
Unt n et, jllat find Scjr.ei Flannel,
STAPLE GKOUERltS, Golden Gale, Star & Superfine Flour
i.piuml'SaKjTtr Salmon Uayo nran Alao, California Limp. Tomatod auil llydranllt Cnnrut.
Tor Kerosene Oil "We Offer THE PA1ACE, and Guarante
itcannofcbebeatfor quality or pxice; also, THE
"VULCAN, a good oil and above test:
WOODWARD & BROWN'S CELEBRATED PIANOS
The Cheapest (Jood Piano; New
No. 5 NUTJANU STREET, HONOLULU,
Agents for tlie 'Superior' Stove
Have Received a rull
I new 1'UJ w a are Ail nude irom our own mttrnm
JOHN DEEUE, tbc Pioneer Western Plow
Murks in the world. W e are Agents for
Cultivators, Horse Hoes, & Harrows, , j ,s
Old Pattern "KLolinc Plows.
Plantation Tools, all kinds ; ft
Diflerenttal Pulley BlockB,
Bnckere Mowers. Hvdraulic Jacks.
,OiJ3pentiae, Kerosene Oils
tent 0ilfcndWr4i3n(S,btrwebaier Safes and Itoien.
jlsr HairCUoiseX' nrainidaa JJoods, Lamps, Chandeliers, Lantern", 4c
its pS BRt pi
So.fc Cue; Firm, IloiAilalt, 6prU
WaUbci of I) Unit Krpairea In a Vallafactory
autx aad at Eciftmablr rrtcea. Island Orderi
rroatlseaa and aj' work done br as la
gT tie Curtle Office Wlr
7. - -
- rrmt Imnrmnnml art- tiotr thr nrJrrrl to perfection
Silt I mtI.Ir'iIIIIj lollroill.
from "MilpSmrll,"' to
ufi h oni laicrd of in clciuictl llicc
to(vU wilh ner care
AMI Slli Tlir Ilrtler it Uwara command,
o t r Jvland 4. U antl. riarticalarlr In
G on oral Commifttlon Merchant nud Proprietor of the
INDIA RICE MILLS. Son Franci-co, CaL
A. Hand 11 Iltcacheda&dLnbJtaclud i ottonr. RuFelaDlancj.
en Organ Co.'s Parlor Or: ans
STOVES AND RANGES
Ai-o, Krery Denrrtptjon of
SHEET METALWABE ON HAND
i-ole At its In thefc Irlande for the
ALL MZES IS1.TUCK
CIRCULARS ;i!D PRICES ON APPLICATION
Line of the Tavorite
a to 13 lurli.
l.r lh br!pa&i SrOLIMftrXrJWiWOltKif of
Manniaclbm larRcKt Stetl Vluw
tliis Manufactory, Approved btj)( of
Cutters, Garden & Caual Barrows,
Leeii our lint andatll at Lowctr Puns "m
Bojll ersj Steam Pipes
Savos 25 percent, of
KEDUPED T,0 $7.50 BBD.
THEO. H. DAVIES & Co..
WEDXESDAT, KOYBMBEB 12 1684
Supreme Court of the
J. 0. Davis rr Ats. rs. Arose.
Jv1i,CJ. iItCVj,J. JttllmJ. OplnhnnfO't
This i a cue appealed from Uie
privalo way and water rijjbU of
the District of Waialua. Oilm.
Connael for tho defendant moved to dismiss
the appeal for want of jurisdiction in the Oom-
missioncr npon the cue stated by the record
and thcjndment thereon. The Court overruled
the motion npon the following considerations..
By the record it appears that tho defendant
was duly summoned before tho Commissioners
"to inswerjtd tlieBe'mand or complaint 'Kn,'
of X 0. Dai and other plaintiffs named, '(list
the said Afong had wrongfully taVen the water
of tho sprinjrs of 'Kalie and Tahnlii lo the
injury and damage of the water rights of the
plaintiffs at 'Paulcauwila' and on the lands
adjoining at Kamooloa on the north."
The sole provision for the jurisdiction of
tho Commissioners is found in Section U97 of
the Code, as amended by act of 1660, which
reads thus "It shall be the duty of such Commissioners
to hear and determine all controversies
respecting right of way and rights of
water between private individuals or between
private individuals and the Government," and
in Section 999, as amended by Chapter 1 9 of
1676, that "In settling audi coalmversics the
Commissioners slull give such decision as
may in each particular caso appear to them to
bojustand cquitablolwtwcen'theparties in.
The defendant coming m on the summons
and joining issne on tho claim of plaintiffs
there was clearly a "controversy" of the
matter within tho jurisdiction of these
Commissioners. This Court in a recent case
not retorted dismissed a caso for want of
jurisdiction when it appeared thatono Abulia
applied to the Commissioners lo determino his
n atcr rights without setting forth a claim as
azainst other Dailies, and the Commissioners
preceded ito adjudicate upon luYrisbts' gf
watcrwithout making other persons whoso
rights were claimed to be affected, parties to
tho adjudication. The decision was merely a
declaration or exposition ol the plaintiffs' right
lo certain water, made ezparto and no opportunity
to bo heard was afforded those who
claimed that their rights were affected by the
plaintiffs' claim. e held that as tho record
failed to disclose any "controversy" between
plaintiff and other parlies, Ihc Commissioners
were without jurisdiction.
The Commissioners it is conceded are not
authorized to award damages for wrongful
diversion of water. Soch a matter should bo
the subject of a civil action in tho proper
But it is claimed by defendant a counsel that
the Commissioners have not jurisdiction to
older obstructions to water channels removed,
as dams, troughs or drains, or to order banks
of water courses restored, or to forbid the
erection of obstructions, and in short, to exercise
the functions of a Court of Equity applicable
lo the subject matter.
The counsel claim that tho Commissioners
have jurisdiction only to declare what the respective
rights of tho parties aro and to prescribe
the times of use of the water lo each
claimant or the distributive share of the same,
and tho rights beiDg settled Equity must be
resorted to in order to protect the enjoyment
of the right or to redrcsa infringements
Wo do not think the Legislature intended
any suchjimitation of the jurisdiction of tho
Commissioners. They aro authorized, as wo
have sccu, to reuder such decision as may in
each particular case appear.to them to bo just
and equitable between the parties interested,
and they "have the like power to adminiator
oaths, 'to pnnish contempts, ami grant adjournments,
to subpoena and compel tho attendance
of witnesses, to enforco judgments and issue
execution for costs as couferrcd by law on
Police Courts." p. 29G Compiled Laws.
Wc construe this as giving the authority to
the Commissioners to make such orders as
may bo legitimate and necessary to the effectual
enforcement of their judgment. Wo think the
Legislature did not intend to compel parties to
establish their rights in one forum and obligo
them to resort lo another forum to have these
rights enforced or protected. Tho Tery object
oi a special Court of Commissioners in each
election district supposed lo possess "special
knowledge for this purpose to nettle contro
versies respecting rights of way and water
rights was to create a forum for tho complcto
adjudication of such matters subject to appoal.
This Commission cannot, of course, create new
privileges nor apportion and distribute water
aruiiraniy wituout rclerence to its title.
A controversy must annear. It is difficult
to know how a controversy could be occasioned
except by one party taking more than his
accustomed supply of water and to accomplish
this by building dams or increasing the slzo
of old dams or increasing ditches or doing
some act which mast be stopped in order to
restore matters to tho" condition they were in
when the acts complained of were done, if tho
act complained of should bo found to bo in con
travention ottne plaintiff's right.
On reference to the numerous cases decided
by this Court on appeal it will be seen that
many questions as to tho removal of dams and
other obstructions have been passed npon by
Tho Counsel for defendant objected to the
introduction on appeal of tho evidence of witnesses
who testified before the Commissioners.
Tho statute, p. 295 Compiled Laws, prescribes
that' r:.m rv... c n i tt
lu wiiwui.vuuuui oupiciuo ifuurtfiuau
hear and determino the caso in Banco and at
low tlie introduction of new evidence."
This is far different from tho language used
in appeals from the Commissioners of boundaries
which prescribes that tho record of the
Commissioners be read in evidenco "and the
Court shall allow the introduction of the
of witnesses whoso testimony is not on
record, but not otherwise." Compiled Laws
p. 530. It also differs from tho statute concerning
appeals to tho full Court from tho decisicn
of a single Justice thereof. There tho law
reads that "no new evidence shall bo introduced
in the Court above; provided always,
that tho Court above may in case evidence is
offered which is clearly newly discovered evidence,
and material to the just decision of the
appeal, admit tho same." Compiled Laws p.
On tho appeals from Commissioners of private
ways and water rights, "new evidenco"
may be introduced. We do not consider this
to he limited to newly discovered evidence.
Xor can it be confined to the evidence of fresh
witnesses. Wc adopt a more liberal view and
allow flic testimony of cither new witnesses
i. c. (those not examined in the Court below)
or of witnesses examined below if their evidence
Bhall be new and not a mere repetition
of i hat was said and recorded below.
We como now to the points presented by this
appeal on the evidence.
The defendant holds as lessee or otherwise
certain parcels of land in Waialua,Oahn, npon
vxhich are several springs called Pahuldi nui,
Pahukii iki, Lehua and Kalia, and other
springs not named. Tbo water comes fo lho
surface and makes something of a pond surrounding
each spring. The water flows from
ono spring or .pond to another and supplier
water to many parcels or'natchf nf lanrl
adjaccntdivided by banks or kaaaunas, form
al i) tuiuiaicu in xaio dui now mainly in rice.
The water from Tahnldi iki flows into tho
Kalia snrinz. From this larrcar. nnnil n,
tho Kalia spring, there is an ancient ditch or
auwat leading thence and passing along-side
of the Pahukii nui spring tho auwai receives
from it a supply of water throuch an opening
in its banks. Further alonr the uni nmm
another augmentation of its supply of water
irora mo i.cuua spring, alter naviag passed
through several kalo or rice nalenii
the ditch is continued until it reaches the lands
owned by the plainthl and supplies them with
water. On the lower and malad side of this
main auwai, i. e. between tho auwai and tho
river are many patches formerly planted in
kalo but which are now planted m rice by
Wc think it is well established by the testi
mony mar me piaintills nave used the water
ior n penou inucliovcr twenty years distributing
it among themselves according to well
settled times of ose. For instance, the plaintiff,
Davis, has the water on his lands (which
he got by deed from King Kamehamena 111
in 16S1.) for CO Lours every week. There is
no controversy between tho plaintiffs. They
make common cause against tho defendant
who is the representative of a Chinese company
engaged in hce culture and complain tliat he
has wrongfully diminished the supply of water
accustomed to flow in tbo main auwai to their
injury, lliat lie has done tins by placing two
wooden troughs or drains under and across the
main auwai ostensibly for the purpose of
oraining ine water from the rice land on the
upper side of the auwai. The water that
flows through one of these drains goes into
the rico land of the defendant on tho lower or
river side of the auwai and there is testimony
that much water thus finds its way to tho
river and is lost.
The plaintiffs also complain that tho defendant
takes tho water from Pahukii iki to other
lands of his by a rotary screw which thus
prevents the water from flowing into the Kalia
Another coroplaTnl of the plaintiffs" isThaf
the defendant has cut and trimmed the banks
of the main auwai, so that whereas formerly,
niuw lurco ice. il is now only a
foot and a half and eight Inches in places.
Many witnesses testify to the diminution of
water by reason of defendant's acts, and Davis
says the suply of water to tho lands of tho
plaintiffs is reduced m that, whereas formerly
a trougb 6 incues Droaa ny o incnes nign
would not carry off all tho water, now a trough
4 inches wido by 2 inches hih is sufficient.
The plaintiffs contend that by the evidenco
the patches adjacent to the springs, now held
by defendant aro not entitled to water as of a
right obtained by prescription. The evidence
is that these patches when cultivated in kalo,
were sccnstcmcd from ancient limes to he filled
with water, as they needed it, directly from
tho main auwai through openings made in the
banks. When one patch was full the water
was made to flow into the patch next below It
until this was full, and when all were full ths
it ater would bo stopped off from the main auwai
by filling tho cut or opening with sods or
stones. The argument is made that as these
patches had no regular days allotted in which
iboy received their water supply, but look il
as they needed it; and as some of tho witnesses
say "furtively," no right by prescription was
But a largo number of these patches belonged
to tho konuhiki, or general land owner
in whoso land somo of these springs which
supply the water are situated.
By the rules of ancient Hawaiian agriculture
the konol.iki pitches wonld be entitled to water.
And it is a general principle, and nut
disputed, that 'a land owner is entitled lo tlie
use of the water originating upon his land,
subject only to the rights which others may
acquire by prescription. As to the patches of
land in the immediate proximity of the springs
not owned by the konohiki, but granted as
kuleanas, and now in possession of the defendant
wo arc of the opinion that rights of water
can be acquired for them by a sufficiently long
and adverse opeu use of such water as may be
required for the cultivation of tho crop, though
the water he not taken during stated periods
of time. But the konohiki, or owner or the
lands in which these springs are, can uso as
he pleases, whatever water from them has not
been acquired by adverse use by others.
The plaintiffs contend that they are entitled
by adverse possession, to tho uso of the auwai
full of water leading from tho fprings;. The
defendant',! counsel contend that "in regard
to the water unmiveJ from thodcfemlant'ii lots
above the ditch into either of his 1 its then', he
bad a right su to il-, it being water arising
from a spring upon hid own land; and that by
the same right they were authorized in drawing
off the Pahukii water to other land of tueir
own. The Pahukii land being lower than the
auwai, it is certain that water could aud can
reach the auwai in no other way than by being
allowed to collect on the Pahukii lots until it
overflows tho banks of the auwai, and also by
its flowing, either as surface water, or by subterranean
percolation from the Pahukii spring
into the lower Kalia spring. That the plaintiffs
havo no right to such overflow, involving
as it docs tho necessity of keeping their land
in such a condition that the water would overflow
its bounds, and no right to the accretion
to Kalia spring water from Burface water or
by subterranean percolation from tho Pahukii
spring, citing tho below mentioned authorities
in support of the position that no legal right
can be acquired to tho continued use of water
by subterranean percolation or from surface
Acton vs. BInndell, 12 M. & W. 336.
Chascmore vs Richards, 7 II. L. 3 10.
Iloath vs.DriscolI, 20 Conn. SS3.
Swett vs. Cutts, SO N. II. 439.
Waffle vs. N. Y. O. R. H , 58 Barb, 113.
Goodale vs. Tnttle. 28 K. Y. 400.
Bliss vs. Greely, 15 N. Y. 671.
Chaso vs. Silverstone, 02 Me. 175.
Washburn on Easements, Sections VI, VII,
The principle collected from theso authorities
is thus stated by Washburn in his work
on Easements p. HI. "It mar be stated as a
general principle of nearly universal application,
that, while ot.o proprietor of land may
not stop or divert the waters of a stream flowing
in a surface clianntl through it, so as to deprive
a land owner whose estate lies upon ths
stream below that of the proprietor first mentioned,
of tho use of the same, or essentially
impair or diminish tho use thereof: if, without
an intention to injure an adjacent owner, ami
while making use of his own land to any suitable
and lawful use ho cuts off, diverts or
destroys the nseot an untkrgrouuil spring or
urrent of irofer which has no known or defined
course, but has been accustomed to penetrate
and flow into the land of his neighbor,
he is not thereby liable to any action for the
diversion or stoppage of such water."
In tho first caso cited: Acton vs. BlundcU,
the Court Bay "there is a marked and substantial
difference bolween the law as to the rights
to enjoy an underground spring of water and
that by which a water course, flowing on the
surfaco is governed." Mr. Washburn (id. p.
414) says that: "among the considerations
upon which this difference is based, is that tho
ono being notorious, whoever buys or grants
it knows what passes, while the other is secret
and unknown at tho timo of purchase and sale,
and may be in its nature constantly shifting.
Nor can it ordinarily bo ascertained what part
of tho supply comes from one's own land and
what from that of another." The controlling
circumstaneo is not whether tho stream was
above or below ground but whether it was or
was not asccrtainal and definid as a stream. If
there is a natural spring, the waterfrom which
flow s in a natural channel, it cannot ho lawfully
diverted by any ono to tho injury of
npanan proprietors. If tho channel or course
underground is known, it cannot be interfered
with." Id. 448.
Iu summing up the doctrine that rights cannot
be acquired in subterranean, unknown percolating
water, the learned author (id. 4 07 and
468) says: "When, in addition to the foregoing
authpritics it is remembered that the common
law idea of prescription implies a grant from
an intelligent crantor of something with which
he intends to part, to a grantco who intends to
accept it, and that open adverse enjoyment in
such cases is nothing more nor less than evidence
of such a gnint, it is difficult to see iiow
the idea of such a grant having been modocan
ho raised, when neither party could havo
known that the ono was deriving anything
from the other."
Applying theso principles to the case at bar
wc find from the ev.'dcnce that tho water comes
from theso snrinrs into tho auwai in known
and ascertained channels: ther aro tointedout
by the witnesses aud marked on tho chart of
tho land in evidence.
The principles abovo Btatcd refer to natural
streams but thoy apply equally to artificial
water courses as this auwai is. Such has
uniformly been tho decision of this Court.
A right by prescription can bo acquired to
tho waters of a spring which came to tho sur
face and make a pond and flow over or under
lho banks or through a cut in the samo into
an auwai constructed for tho express purpose
and conducting tho water to lands where it
may bo used tor irrigation.
It is, we think, proved in this caso that tho
plaintiffs have acrmircd arichtbr prescription
to tho water flowing from the springs, in quos-
uuu lubu iuu aunai, auer uic kbiu paicuea ou
cither sido of the auwai and adjacent thereto
have received a supply of water sufficient for
tbo cnltivation of kalo.
Wc say that tho defendant is to havo water
sufficient to cnllivato his land in kalo because
this is the gauge of the amount of water used
by this land from ancient times and measures
tho amount ot water which remains to the use
of the plaintiffs.
It is urged upon us that it is essential to
rice culture that the laijd bo drained dry while
uie uui is maiuriog anu wnuc, auer uarvesi,
it is being plowed fcr tbc next planting and
that this must bo done twice a year. If is in
evidence that a month is required at tho end
of each crop. This would necessitate the
draining off of the land for two months of the
yean and as tho drains run under the auwai
all this water would be lost to the plaintiffs
during this time, which would be one sixth ol
the whole time, during which the plaintiffs
supply would be lessened.
The trough or drain made from ono of
defendants patches to another and lower one
runs under and transversely to the auwai lo
the use of which tho plaintiffs are entitled.
This, by all the authorities, would bo illegal,
for the act hero is not one done by tho proprietor
on his own land bnt is a trespass upon
the auwai in which the plaintiffs have an ease
ment. This casement goes to tho extent that
the auwai is not to be cut. narrowed or inter
fered with by defendant to the injury of plain-
Wo think tbc trench or drain in Kalia anrinr
which takes ths placo and is tbo equivalent of
uic old waste gate is not objectionable and
UWA uVb ItUfHUr II1B piBintlUB KlgUlB.
ins oiuer a rains under tne auwai aro .i
detriment to ths plaintiffs and our judgment
is uiai tticy must be removed and tue holes
through which they pass, Ctopped up. The
use ot the rotary pump must bo discontinued,
The banks of tho auwai must be restorcd'so
that it -will hold the water on the lower iido
and be gufScienlly wide for a person.lo walk
on it while going to and fro in cleaning the
dtlcn or seeing to the supply of water.
S. B. Dole, for plaintiff; A. S". Hartwell," for
1831. - ,T
' ' i : I i W fci
Supreme. Court of ths Hawaiian Islands
rj . s In Banco- m
Kaaxaaxa asp Kacuoi vs. J. L.
JM,C.J. JfcCy,J. AttitiJ.
Upon hearing the testimony offered and on
examination of ths record of tbo Water Commissioners,
wo are of tbs opinion that tho
decree of the VI Commissioners, should bo
modified as claitrcd by the defendant, namely
to the effect that' the plaintiffs are entitled to
one half the waU'r of tbs Kolaloa stream at
night only, from the hours of five p.m. to"
Preston for defendant.
Honolulu, November 3rd, 18SI,
Supreme Court of tho Hawaiian Islands--October
Term, 1884. In Banco-
Tnx Bojid or IionaTUHOSTS. Itarro
TtnrlKA DA EsTBZLLA.
JuddC.J SIcCuUsJ., M$tin J. Opinitx
of the Court by Juid C. J.
This case comes tip by appeal of tho
plaintiff from a decision of Hon. G. F.
Hart, Circuit Judge of the Island of Hawaii,
in favor of defendant.
It appears by tho record that Ihb defendant
eiraed a contract in writing on tho
0th of May, 1881, ot the Island of St. Michaels,
wherein it is stated that ho
sirous of cmieratinir to the Hawaiian
Islands, there to bo employed under tho
direction of tho Board of Immigration of
tho Hawaiian xungdom, and in consideration
of facilitating (receiving) a passago
to tho Hawaiian Islands on board the bark
SaffoU.; and a further undertaking that tho
Board of Immigration will pay orcausoto
bo paid to him certain wages, and other
undertakings as to board, lodging, medical
attendance, etc, etc., therein mentioned,
tho defendant agreed to "duly and faithfully
perform such lawful jind proper la-boras
ho may bo directed to perform, under
tho auspices of tho Board of Immigration
or and during tho spaco of fivo years next
succeeding the dato of the commencement
of snch service after arrival in tho Hawaiian
'Kingdom it being always understood
that ho shall not bo compelled to labor on
Sunday or'any holiday recognized by the
Government, and that his services shall
not bo transferred without his consent,"
It also appears that tho defendant arrived
at Honolulu, and was by a written
agreement, executed August 23d, 1881, by
tho President of the Board of Immigration
and the Star Mill Co., directed to labor for
tho said Star Mill Co. of liohala, Hawaii.
In this agreement tho Star Mill Co.
agree to pay tho wages, and to perform
mo ouier Bupmuuuus m mvur ui uuivuu
ant originally promised, and agreed upon
by tho Board of Immigration. Tho Star
aim uo. agrees tnat tue contract tor tue
service of tbo said Benito Teixeira da
shall not bo transferred to any third
party dnrintr tho term of this contract
without tho consent of tho said Board of
Immigration, or its agent. Tho Board re
serves mo ngnt, on tno representation oi
tho laborer to cancel tho contract for any
cause deemed by tho Board to bo sufficient
and to refund a oronortionato amount of
the money advanced by tho Star Mill Co.
"But if tho agreement shall bo cancelled
by a magistrate, for non-fulfillment, or
violation of any of tho conditions of tho
agreement on tho part of lho said Star
Mill Co. then no rofundintr will take
Tho defendant went to Kohala under
tho direction abovo made, and ha3 worked
there for the Star Mill Co. for a portion of
tho stipulated timo. On tho 24th Duly,
1884, ho left his work, and was brought up
beforo tha Police Justicoof North Kohala,
and by him tried and judgment rendered
ordering him to return to tne labor of tho
Star Mill Co. Ho thereupon appealed to
Circuit Jndgo Hart. A power of Attornoy
from tho President of tho Board of Immigration
to G. B. Ewart, manager of Star
Mill was introduced, by which tho Board
authorizes G. B. Ewart to prosecnto and
defend in the namo of tho Star Mill Co.,
or in tho namo of tho Board of
all cases and actions in which Portuguese
and other laborers shall bo a party,
etc, and moro especially those laborers
under contracts, set over by tho Board of
immigration to tno star aim uo. 'no
defendant claimed that ho went to work
at Kohala, for Mr. D. R. Yida, who, it
seems was then tho manager of tho Star
Mill Co. Tho Circuit Judge was unablo to
ascertain from tho papers presented who,
if tho defendant was a bound servant, is his
master, who, for a possible breach of con
tract, may bo sued, fined and imprisoned.
Tho point was also mado that tho contract
was not acknowledged before a duly appointed
agent, and that tho contract was
not stamped as required by tho laws of
Wo deem mat tlio above lull statement
of tho caso is necessary in order to ascertain
the legal status of tho defendant,
Our btatutes recognize two classes of
labor contracts which may bo enforced
under our somewhat peculiar labor laws.
One class is of contracts made in this coun
try, and the other class is of thoso mado
in a foreign country, to bo executed in
this. The former class is authorized by
Section 1417, which reads as follows:
"Any person who has attained tho ago
of twenty yoars, may bind himself or herself,
by written contract, to servo another
in any art, trade, profession or other employment,
for any term not oxcecding five
years." Tho second class is recognized
by Section 1418 of tho Civil Code which
reads as follows:
"All engagements of servico contracted
in a foreign country, to bo executed in
this, unless tho samo bo in contravention
of tho laws of this, shall bo binding herb:
provided howover that all such arrangements
mado for a longer period than ten
years, shall be reduced to that limit, to
count from tho day of tho arrival of the
I II T"
person uounu, in mis .runguom.
Tlio contract in this caso is ono mado at
St. Michaels (a foreign country) between
tho Board of Immigration and tho defendant,
it is recognized by Section 1418
above emoted. It is not necessary to tho
validity of this contract that itboacknowl
edged. Tno law requires "all contracts
for service authorized by Section 1417 of
the Civil Codo" to bo acknowledged: (Com
piled Laws p. 457:) but theso aro domestic
contracts only, and there is no statute requiring
that contracts executed in a for
eign country shall be acknowledged cither
in tho country whero mado or upon arrival
in this Kingdom.
An acknowledgment to a contract is for
tho purioso of facilitating the proof of its
execution: such is the effect given to it by
tho law: Section 5 of tho Act of 1872;
(Compiled Laws p. 458.) In tho absence
of a statutory requirement to this effect, a
contract would bo perfectly good without
Under an Act authorizing tho Minister
of tho Interior to appoint agents in each
election district to tako acknowledgments
to labor contracts he could not appoint
agents to act in a foreign country, it such
wero appointed his certificate would add
nothing of value to tho contract, and if the
contract was invalid, such an acknowledgment
would not mako it valid.
But tho fact that tho defendant mado
and entered into this contract is not disputed
by him. The copy beforo the Court
was introduced by him and ho has in pursuance
of tho contract received the benefit
of a passago to this country and has worked
under it for somo years.
"Wo pass the question suggested whoth
or tho contract is in conformity with tho
laws of Portugal, tho dominion whero it
was made, with tho remark that wo havo
no evidenco beforo us as to what tho
laws of that country ore or what thoy require.
A foreign law relied upon as a defenso
must bo proved like any other fact in the
Frith vs. Spraguc, 14 Mass. 455.
Owen vs. Bogle, 15 Me. 147.
"United States vs. "Wiggins, 14 Peters 334.
Cutler vs. "Wright, 2 K. Y. 472.
Murphy vs. Collins, 121 Mass. G.
But if the law of Portugal applicable to
such contracts had been proved in tho caso
it would have to bo established also that
the want of formality in execution rendered
tha contract void and was not a defect
which could be cured.
"Wo wish also to guard against committing
g ourselves to the view that it is
tho bindinp; effect here of a foreifrn'
contract that it must fulfill the formalities
required by tho law of Buch country, the
foreign law being proved. When such a.
caso arises it will be considered.
Tho remaining question is if the. defendant
has bv the Tianers in evidenco n
"master" responsible under thclaw, whom
uo can coil iu oucuuub lur exuenv,
or violation of any of the terms of
the contract as set forth in the law: (Coin-piled
Laws p. 4C2.)
It is evident that tho Board of Immigration
in this case considered that the contingency
"might arise of the contract being
cancelled by a Magistrate for default
of the Star Mill Co., for it is stipulated
that if the contract shall be so cancelled
no refunding will tako place. We think
that the Board of Immigration has so far
substituted the Star Mill Co. in its own'
placo as master over this servant, as to
render the contract liable to bo rescinded
and the laborer dischanred from all obli
gations to serve under it, whenever, in
the opinion of a Magistrate bavins juris
diction, cruelty, misusage or violations of
tho terms of the contract shall be duly
proven. TVe think that the judgment of
the Magistrate in such a case should go
further than to discharge the laborer from
the service of the immediate employer and
leave his original contract with tho Board
of Immigration jtill subsisting. The servant
has a right to have his original contract
annulled, for this is the contract
which binds him.
If the cruelty or misusago bo done to
tho laborer, or the violation of tho terms
of tho contract be occasioned, by an over
seer, or other director of the laborer, and
not the actual contracting master, tbe re-suit
would bo tho same as if done by tho
master himself and tho Magistrate would
bo authorized to cancel tho contract.
The Star Mill Co., like the majority of
tho plantation enterprises in this country
s-'a corporation, but it has to work through
managers, agents, officers and overseers
and tno laborer can rely on his contract
beinj; cancelled by a Magistrate in a case
made, for tho default or misdoings of
theso agents by whatever name they may
But the law -says that a "master" can bo
fined iu a sum not less than five nor more
than a hundred dollars and in default of
payment be imprisoned at hard labor until
the same is paid.
"Wo think that any overseer or director
of contract labor found guilty of cruelty
or misusago is so far forth a "master' in
tho meaning of this law and liable to the
penalty abovo mentioned.
' Theso provisions of tho law aro intended
for tho protection of tho servant and they
apply1 in terms to contracts mado abroad
and in this country to tho contracts contemplated
by Section 1417 and 1418 ot the
Having thus found that tho defendant
is bound by a legal contract of servico yet
unfulfilled, the judgment of the Circuit
Judge is reversed and tho defendant is
ordered to return to lho servico of tho
Star Mill Co.
"W. BJ Austin, for tho Board of Immi
gration; "W:B. Castle, for the Star Mill
Honolulu, Nov. 1st 1881.
G. BREWER k GO.
JUST RECEIVED !
"WTiicli -will be Sold at
LOW RATES !
"Electric Oil 5?
130S WATETt WIIlTEr PATENT Noiale Cans.
LARD, in 5 & 10 lb. PAILS
IN' TlAItllEI.S AMI CA1ES
Tar -and Pitch,
In Casks for Family Use.
Fairbanks Platform Scales,
ASIIOAltS, 16,17,18 ft
A Choice Selection of
New Styles of Carriages,
EASTERN MADE OXCARTS
0. BREWER & COMPANY
Tinsmith & Roofer,
CAMPBEIiiVS NEM" UXOCIT,
TOUT STREET. Oppeaite Wilder Co.
Just Arrived !
" - ;
per "Duk or Aberccrn,"iorm Llrapool,
A1MI "H03Et I
ONE MILE OF
Light .Portable Railway Rails,
IU tbs. per yard; and 20 inch yo;e Hi
AND 10 LIGHT SUGAR CANE WAGONS
i"On. !. h m
2..I. TUaJUUwar la olutle lor Animal Puwer.
ALSO FOIZ SALE
Stralrrht SteH Kails, 11 lbs. to tlie jard
For the woikln ol Xesari John fooler Co-'a
and Joeomotirtf. JheimdenlCTed NtVref to
?otfurtherjarUcn!M, spplj to
W. L. OBEES, or
la ? W. 3IACFABLA5E Co,
Agents lor JshtPowler SCo
0 Gxixr Srtccr, But
I try Bn led "Pnralcltnj sn d Surgeons
UN DlOWb lBUa Mari - - --.
nifn.oiditorM. aiwuWtf .J
- tkatantsmin ltfaSL.
rT I nBflTaULI
ta tti. I
J fnlai2 stlta riiilOWxncx,rrffanwlwneMBiWl
Use stnowinst thK ireqnettay
It ad T-i Doctxjfn Ar and
woo Re no mm bat tiwX)ee
nm toww uau i
mumrmawrm wim miiy MaunmaUKmM sW
fffT"1 """- tcir wiuscrrs'KvxGi(.ivvfior I
I , cms dpi aor
ft. m u r. ttf m rrrnuiKi. rariujiri,iv mis um; t
1 TOM TKI OsVQTA IBZUGW X? iUAUSt OX3T JIU AJOttlSS J
WT sassy -Ms-
DfL UEE.'Q'S rVCSDEann. CEHHAH IN7ICCIUTD3
wan tarn nerrcsa, hw
i wmm, mTVPnirs u wimm ijiam,
mff i TIcwt
uaa vaisasisaisBstsesa im am !"
Cu fin Bsy
GROSS GUT TOBA
W. Dukes & Son,
FOR PIPES AND CIGARETTES
BEST IN THE MARKET
At the Old Stand, No. 8 Kaahnmanu Street,
TIN, GOFFER & SHEET IRON WOBEER
PLUMBING, in all its branches ;i
Artesian Well Pipe, all sizes;
STOVES AND B ANO-ES
Undo Sam, Medallion, Itichmond, Tip Top, l'nlaco, Flora, May, Contest, Grand Priw,
New Hival. Ofr, Derby, Wron, Doll t, Orpsj, Qaccn, Vartser.J: Armyl'DH,lIiHin(,'brl,BMli,
Haporior, Magnet, Osceola. Almcda Kclipse, Charter Oak, Nimble, lnwood and Letnmlrr Stores,
Galranlzed Iron and Copper Hollers lor llanges, Granito Iron Ware, Niekei I'kited and Plain ;
Galvanized Iron "Water Pipe, all sizes," and laid on at
Lowest Rates; Oast Iron and Lead Soil Pipe,
House Furnishing Goods, all kinds;
llUUUmt 8IZES AND GKADES;
Lilt and Force Pnmps, Cistern Pumps, Galtanized Iron, iHieet Copper, Sheet Lean!,
Lead Pipe, Tin Plate, Water Closets, Marblo Slabs and Enameled Wh Stands,
Chandeliers, Lamps, Lanterns
VmjggJBg! TRUSSES! TrussjeS I
HOLL1STER & CO.
A Large Invoice of the Celebrated
We Havo Especial FAGIL11 1ES for Adjusting TRUSSES.
Hollister & Co.,
Cor. Fort and Merchant Sts., & 59 Nuuanu St.
lixasco. or. '
to. tha &( 1
------.- corea uh i
knaU ' "''"- 2UU 1
Perfumery !; ;' Peffairief.y . !'
Perfumery ! Perfumery I
HOLLISTER & CO.,
Have Just Received the largest
LOT OF PERFUMERY
Ertt lMTOBTED INTO TJIIS KINGDOM, COHl'IUSINU
Over Pifty Different Odors of the Celebrated
Odor-Cases, Fancy Boxes, Bottles, &c
Hollister & Co.,
Agrexrts -Tor Hawaiian ISLixisa ono.
59 ITnuanu Strand Cor. Fort and Merchant St,
rrss!rc3s?s!rssr,"f' JjHiSaUMJ ...E.. ... -i
$wr.ttl1hr 1M I
xokko his 3
wrosx noon: I
aou uso i
ml lM amplify i
vu v bbuisw
IDCUsrf h. X. F f "