Established July 2, 1S5G.
VOL. XXIX., NO. 5122.
HONOLULU, HAWAIIAN ISLANDS, SATURDAY, JANUARY, 7, 1S9 9. TEN PAGES.
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In this market or abroad.
GEORGE R. CARTER, Treasurer.
Office In rear of Bank of Hawaii. Ltd.
FOR SALE BY ALL NEWSDEALERS
215 Merchant St.
Makes a specialty of ancient Hawai
ian Curios, and also carries the best
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Mats, Fans, Leis, Bamboo, Lauhala
and Cocoanut Hats, Etc., Etc. Tel. 659.
MISS E. CLARK, OF B. F. EHLERS
& Co., has left for the coast to be ab
sent about six weeks. Those desiring
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will do well to await her return.
MISS FREIBURG KNOKE, DRESS-
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C. S. RICHARDSON.
PUBLIC STENOGRAPHER AND
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est prices. Telephone 313, with H.
Waterhouse & Co., Queen street.
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King street, near Nuuanu.
A. J. CAMPBELL.
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flce Queen street, opposite Union
M. VV. M'CHESNEY & SONS.
Wholesale Grocers and Dealers In Leather and
Agents Honolulu Soap Works Com
pany, Honolulu, and Tannery.
LEWIS & CO.
Wholesale m Reiaii Mm
111 FORT STREET.
Telephone. 240 : : P. O. Box, 89.
H. MAY & CO.
mottle flit RehD Grocers
-:- 9S FORT STREET. -:-
Telephone, 22 : : : P. O. Box, 470.
What Say You
by which one oiling
"will keep vour Bicycle
well oiled for a whole
season. We've got it.
No Jeaknge, no bother,
no trouble !
You get this when
209 HOTEL STREET.
Important Decision By the
SAYS HAS NOT JURISDICTION
Chief Justice Dissents Opinion
Sustains the One Federal Off
icer Here. Resolution. Effect.
IX THK SUPREME COURT OF THE
December Term, is3.
In the matter of the petition of Wong
Tuck, Ah Muk, See Yan, Ah King, Hee
Pee and wife, Ah See, Kai Lin, Chun
Yee (a woman), and her daughter, Lok
Sam, Ah In and wife, Ah Tai, alias Ah
Fai, Chew Sing, Ah See (a woman), E.
Pong, Chan Yit Mung, Ah Kong, and Lum
Tuck Chong, for a writ of habeas cor
pus. In the matter of the petition of Luke
Kru, Ma Nin, Ma Sing, and Choy To for
a writ of habeas corpus.
In the matter of the petition of Leong
Chee, Cheong Yook, Yen Lin, Yen Chong,
Yen Yick, Yen Moon, Yen Bow, and Lu
See, for a writ of habeas corpus.
Submitted December 3, 1S0S. Decided Jan
uary C. IStft.
Judd, C. J., Whiting, J., and Circuit Judge
Perry, in place or i rear, j., aoseni.
Every sovereign nation has the inherent
right to deny to aliens the privilege of
entering its territory and even to expel
them therefrom. .
it i 5iis:-i the. risrht of " every independ
ent state to prescribe the conditions upon
which it will aamit anens mio us ut-in-torv
and further to revoke at will a per
mission or license already granted to an
alien to enter, and this, too, without
notice to such alien of its intention to
thus revoke the license.
The Joint Resolution passed by the
Congress of the United States on July ,
1S98, relating to the Annexation of the Ha
waiian Islands, proviueu, mier an. nun
...v,- choii i.f. net further immigration
of Chinese into the Hawaiian Islands, ex
cept upon such conditions as are now ui
may hereafter be allowed by the laws of
.htTnitori statps " TTeld. that bv virtue
of this provision the United States laws
relating to the immigration and exclusion
of Chinese were extended to and put in
force in the Hawaiian Islands, and are
... ; in this fAiin t rv : and. furth-
er, that Chinese, whether residing in this
country or not prior to July 7, 1S98, to
whom permits to emei
Islands were issued prior to said date by
i, iinn'otinn nnvommpnt. are not eX-
cepted by the Resolution, from the oper
ation of said United States laws, but are
also subject to the provisions thereof.
Ti,iu t- ta tint a court of the United
States and has no jurisdiction, in habeas
corpus proceedings or otherwise to pass
upon the validity oi me appuimuicii
l Federal omcer or tne extern ui ma
l bwq nr thft leealitv Of
v, i 4-. hv him unrlr snon laws OI
1X1(7 UCiru lIUil -
persons who claim to be illegally in such
ponnrH thuc shnws that some of the
petitioners resided in these Islands prior
to July 7, 1S9S, and left with the intention
f rotiipninf anri nrssssinr nermits to re
enter, issued prior to said date and that
the other of the petitioners nave noi neic
tofore resided in this country, but also
possess permits to enter, issued prior to
The main issue raised by the pleadings
c whether or" tint thf Laws of the United
States relating to the immigration and
Dvvluclnri nf ffilneso were pxtpnded to
the Hawaiian Islands by the terms of the i
T!nt T?tcAlntlnn nacceri Vv PontrrPSi? Oil
Julv 6, lb'JS, and signed by the President on
the day following, ana commonly cauen
the "Newla'nds Resolution."
T'fi-ie eneT-inr- nrkrn the rnn:i)lorntiO!l
of the question of what it is that Congress
has enacted by truat section oi tne rew-
i.-.v..-1'c T-? ii ir n-hiph rpfora tn Chin
ese immigration, it is well to observe the
extent ot tne powers possessea iy u-
gress in tne matter or me exclusion u.uu.
expulsion of foreigners.
It is a fundamental principle that every
sovereign nation has the inherent right to
deny tne aliens ine privilege oi eiuennj;
its "territory and even to expel them
therefrom. This principle has been recog
nized and affirmed in clear and unmis
tnkeahle laneruasre bv the SuDreme Court
of the United States. Chae Chan Ping
vs. United States. 1J0 United States ti,
t7, the Court said: "The power of the
Government to exclude foreigners from
the country whenever, in its judgment,
tne public interests require sucn exciu-
;ii-r h :i hfn n s;5en t -! in renpflted ill-
Stances, and never denied by the execu
tive legislative departments," and quoted
witn approval tnat tne language
United States executive officials, who
wrote. "Even society possesses the un
doubted right to determine who shall
compose its members, and it is exercised
by all nations, both in peace ana in wai.
It mnv ahvavs be Questionable
whether a resort to this power is war
ranted by the circumstances, or wnat ae
i-irtment rf the f!nvrn men t 1a emrOW
ered to exert it; but there can be no doubt
that it is possessed by all nations, and
tnat eaen may aeeiae ior itseu wnen me
occasion arises demanding its exercise.
"The control of people within its limits,
nnd thr riirht to pviipI from its territory
persons who are dangerous to the peace
of the State, are too clearly within the
essential attributes of sovereignty to be
seriously contested." Asrain, in the case
of Nishimura Ekin. 142 United States 65?,
this language is used: "It is an accepted
maxim of international law, that every
cAvorr.!om nitinn hoc the nnYTpr. HQ 1 11-
herent in sovereignty, and essential to
eel f.nTee:eT-v-j t5rn t n f rT-h1il the entrance
of foreigners within its dominions, or to
A FAR-REACHING DECISION
KJHlUE decision of the Supreme Court
u II II one wnich is far reaching in its
U II 11 whether or not a Chinaman with
ment is entitled to land here, sinks into insignilicance before the
declaration of the Court that it is without jurisdiction in cases aris- -
ing under the laws of the United States. This proposition, if followed -f-
to a logical conclusion, may rult in some very serious failures of -
The decision of the majority of the Court is briefly this: That the ques-
tion raised as to the authority of J. F. lirown to act as a United States
officer in Hawaii, is a question arising under the laws of the United -f-
States; that the Constitution of the United States reserves Jurisdiction of
all such cases to Federal Courts, that is to the Supreme Court of the United
States, and such inferior Courts as Congress may establish; that Hawaiian 4
Courts are not inferior Courts established by Congress, and therefore they
have no jurisdiction to consider questions arising under the laws of the --
If this lack of jurisdiction could be confined to the laws of the United --
States, no serious inconvenience would follow, as the law respecting Chinese
immigration is probably the only United States law In force in this country,
but cases in law arising under the laws of the United States form but one
class out of a dozen that are reserved to the Federal Courts in precisely the
same terms. The language of the Constitution is:
"The judicial power shall extend to all cases in law and equity arising
under this Constitution, the laws of the United States and treaties made or
which shall be made under their authority; to all cases affecting Ambas-
sadors, other public Ministers and Consuls, to all cases of admiralty and
. maritime jurisdiction; to controversies to which the United States shall be
a party; to controversies between two or more States, between a S"tate and
citizens of another State, between citizens of different States; between cit-
izens of the same State claiming lands under grants of different States, and
between a State and the citizens thereof, and foreign States, citizens or sub-
Now if our Courts fi"ave no jurisdiction of cases arising under fhe laws
of the United States, how can they have jurisdiction of cases arising
under the Constitution of the United States, or how can they have admir-
alty and maritime jurisdiction? How can a citizen of California sue a cit-
izen of Hawaii if such suits are expressly reserved to such inferior Courts
as Congress may establish, and Congress has neglected to act?
In admiralty alone the situation is serious. Both the City of Columbia -f-and
the Labrador are under condemnation by Hawaiian Courts sitting in
admiralty. If such Courts are without jurisdiction both the previous de-
tention and the sale will be void, and the writ of the Court will be no de-
fense to the Marshal in a suit for damages brought against him. -f
The proposition which will excite the most attention, however, is the -f-impossibility
of escaping the conclusion that if our Courts have no jurlsdic-
tion over cases arising under the laws of the United States thev are equally
without jurisdiction over cases arising under the Constitution of the -f-United
States. The only law now in force in Hawaii, by the express terms
of the Newlands Resolution, is such municipal legislation as is not con-
trary to the Constitution of the United States, its treaties, or to the Res-
Who is to determine what laws are in force? If the contention is
raisea tnat a certain law is contrary to the Constitution of the United
States, that is a Federal question and in a State Court would be the signal
for a prompt dismissal of the case or its transfer to a United States Dis
trict Court. The decision just rendered 1Vjts us on the same footing as a
State Court and in effect leaves this country without any tribunal compe-
tent to say which Hawaiian laws are contrary to the Constitution, or which
are still in force.
The decision in question came as a surprise to the bar, as from previous
decisions it was anticipated that the Court was leaning towards the other
view. In the case of Republic vs. Edwards, the Court discussed fully
whether two Hawaiian statutes, that allowing a true bill to be found by a
Circuit Judge and that making a verdict of nine jurors valid, were in con- -4-
flint with the Constitution of the Ignited States. In other words, the Court -4
passed on a Federal question. In the case of Colegrove vs. S. S. City of
Columbia, also, upon a motion to fix a bond for the release of the vessel
4- the Supreme Court assumed that it had admiralty jurisdiction. In neither
of these cases, however, was the question raised and contested, so neither
was a binding adjudication on the present case. Judge Perry himself how-
ever, who wrote the majority opinion of the Supreme Court, had previouslv
4- while sitting as Circuit Judge, decided after full argument of counsel
that his Court had admiralty jurisdiction. '
Of course the Court is bound to administer the law as it Finds it ir-
respective of public convenience or failure of justice in individual cases,
but in previous cases of interregnum, "the law of public necessity" has -4-played
a great part. As was said by Mr. Buchanan, Secretary of State to -4-
Mr. Yoorhees on the 7th of October, 1S4S: "The consent of "the neonie w -a.
irresistably inferred from the fact that no civilized community could pos-4-
sibly desire to abrogate an existing government when the alternative pre-4-
sented would be to place themselves beyond the protection of all laws "
4- Perhaps it may still be hoped that the Supreme Court will likewise infer
4- that Congress in continuing such of our laws as were not contra A- in the
4- Constitution of the United States could not have intended to leave us with- 4-4-
out a tribunal competent to decide what laws were thus excluded. 4.
r4444444444 4- 4-44-4444-4 4444-4- 4" 4 4-4 4 4-4-4
admit them only in such cases and upon
such conditions as it may see. tit to pre
scribe." "The right of a nation to expel or de
port foreigners, who have not been nat
uralized or taken any steps toward be
coming citizens of the country, rests up
on the same grounds, and is as absolute
and unqualified as the right to prohibit
and prevent their entrance into the coun
try." Fong Yue Ting vs. United States,
143 United States 707. See also Lem Moon
Sing vs. United States, 15S United States
fttS, in which these decisions are re-affirmed.
This Court also, in the case of Chow
Pick Git and another, 4 Haw. 3S.", recog
nized this principle.
It is also the right of every independent
state to prescribe the conditions upon
which it will admit aliens into its terri
tory, and further to revoke at will a per
mission or license already granted to an
alien to enter, and this, too, without no
tice to such alien of its intention to thus
revoke the license. This is conceded by
all who took part in the argument in the
case at bar.
Being possessed, then, of these ampl
powers and knowing, as we must pre
sume, what the laws of Hawaii were on
the subject of Chinese immigration, the
United States, through Congress, its duly
constituted mouthpiece, on the sixth of
July last ordered that "there shall be no
further immigration of Chinese into the
Hawaiian Islands, except upon such con-
htions as are now or may hereafter be
allowed by the laws of the United
States." The Republic of Hawaii has ac
cepted and acquiesced in that and the
uher provisions of the Newland's Reso
lution. What is the true meaning and
effect of that paragraph of the Resolu
tion? In the first place, I am of the opinion
that in the use of the term "immigration"
Congress did not intend to limit the appli
cation or the prohibition to such persons
as can be called "immigrants" within the
popular acceptation of that term, and to
exclude from its operation those aliens
who, having formerly resided in the coun
try and having left with the intention of
returning, seek to re-enter after such
temporary absence: but rather that it
was the intention to probihit, to the ex
tent stated in the Resolution, the further
"coming in" of Chinese, whether they
had formerly resided in the country or
not. I construe the first clause of the
paragraph in question as being the equiv
alent of "Hereafter no Chinese shall be
allowed to enter the Hawaiian Islands."
In re Panzara et al., 51 Fed. 27.", and in
re Martorelli, G3 Fed. 437, are cited in sup
port of the contention that the narrower
signification should be given to the term
"immigration." Those cases seem to me
not to be in point. The Court in each of
them was construing the statutes relat
ing to the immigration of aliens other
than Chinese, in which statutes the words
"immigrants" and "alien immigrants"
were used in describing the classes intend
ed to be excluded. Those precise terms
are not used either in the Resolution or
in the United States laws relating to
Chinese. The statutes and the reasons
for their enactment were not the same
as those now before the Court, Moreover, j
the decisions of the United States Su- I
preme Court show that under existing leg- t
lslation in regard to the exclusion of
Chinese, applicants for admission are not
exempt from the operation of such legis
lation solely by reason of the fact that
they have resided in the United States and
left with the intention of returning. See
in the Chinese habeas corpus cases is
consequences. The question as to
a nermit from the Hawaiian flm-pm. -A-
Lem Moon Sing vs. United States, 138
Lnited States, 53S. In other words, the
prohibition against entrance may apply
to those returning after a temporary ab
sence as well as to those who are strictly
immigrants." if that appears to be the
intention of Congress; and in this in
stance, I believe that the intention was
to use the term in the broader significa
tion. The contention on behalf of the peti
tioners is that this provision of the Res
olution does not apply .to those Chinese
to whom permits were issued according
to Hawaiian laws, by the Hawaiian Gov
ernment, prior to the passage of the Res
olution, because to hold to the contrary
would be to give to the provision a re
trospective operation, and that this would
be in this instance a violation of the rule
of construction that a law shall be given
prospective operation only unless the in
tent is clear to give it retrospective force
further that to hold that the provision
applies to petitioners would cause great
injustice and oppression because petition
ers have come here in good faith on the
strength of permits issuer' as above stat
ed and without notice of the repeal of
If Congress had simply said, "There
shall be no further immigration of Chin
ese into the Hawaiian Islands," or, what
is its equivalent, "Hereafter no Chinese
shall be allowed to enter the Hawaiian
Islands," it seems to me that there could
be no possible room to douot but that the
provision would prevent any and all Chin
tEe from enteiing the Hawaiian Islands,
whether former residents or not and
whether or not possessed of a Hawaiian
permit to enter issued prior to Julj' 7,
Such language though very- brief,
would be clear and explicit, and would
not admit of the construction f.ito it of
any exception. And THAT is the lan
guage used in the Resolution, with this
difference and this only, to-wit. "except
upon such conditions as are now or mav
hereafter be allowed by the laws of the
United States." Congress has in these
words stated one exception by virtue of
which certain Chinese mav hereafter en
ter these Islands. To say that such Chin
ese as possess Hawaiian permits issued
prior to July 7, 1n, shall also be exempt
and be allowed to enter, seems lo me to
be to add another exception to the prohi
bition and one which Congress did not see
tit to make. Where the lanxruaire used
J.- the legislative body is clear and ex
plicit and the enactment is one within
its powers and in this case I think that
it is so it is for the Court to enforce it
even though its members might, for con
siderations of injustice and hardshin have
refused to so legislate were it within their
province to do so.
The Hawaiian laws in force just prior
to the passage of the Resolution, author
Makes the food more
r 1 -sm
ized the Government to issue permits to
Chinese to enter these Islands In thre
classes of cases: first, to those who, re
siding here wished to leave the country
temporarily and return within a. year; '
second, to merchants and travelers, who
had never been in the country before, but
wished to sojourn here temporarily, tha
limit of such sojourn being: fixed at six
months: and third, to laborers, who, also,
had never been in the country before, and
who were permitted to remain in the
country for an indefinite period upon con
dition only that they confine themselves
while here to certain specified, occupa
tions. A bond was required In the sec
ond class, conditioned that the principal
would leave the country at or before the
expiration of the six months, and In the
third class conditioned for the faithful
performance of the undertaking- as to oc
cupation. See Penal Laws of 1$97, p. 5M
et seq. Had the Hawaiian Government
issued, shortly before July 7, 1S9S (and
this Court does not know whether It did
or not) permits for a large number of
Chinese of the third class, it could not bo
successfully contended, as I believe, that
it was not the intention of Congress to
revoke all such permits and to prevent
their holders from entering: these Islands.
Other matters were, by the terms of the
Resolution, expressly continued as then
existing, until Congress should otherwise:
provide; but it is apparent that, in view
of the policy of the United States with
reference to Chinese, Congress wished to
put an end at once to the entry of Chin
ese into these Islands under any condl- -tlons
other than those prescribed by-
United States laws. And if it was the
intention of Congress to exclude laborers
of the third class above mentioned, how
can it be held that it was not its inten
tion to so exclude those of either the
first or second class or of both those
classes? It is the fact that they hold
permits, if anything at all. which would
Tive them the right to enter, and yet- all
Miree classes alike hold such permits. It
is not the fact of justice or injustice
which would give them the right to land,
for those are considerations which it Is
for the law-making power, and not for
the Court, to weigh. Uncertainty in tho 1
law would be the result if the Court went
to determine each applicant's right to land
upon the existence or non-existence of In
justice or hardship.
There is no doubt that the rule in the .
United States is that "in construing stat
utes so worded as to admit of a construc
tion which would render them retrospec
tive as well as prospective, a prospective '
operation only is to be given, unless a
legislative intent to the contrary is de
clared, or necessarily implied from the
circumstances of the language used."
23 Am. and ling. Encycl. Law, p. 44S. In
this case, the legislative intent is to be
gathered from the language used in th
Resolution itself, and Congress having
said that there should be NO further im
migration of Chinese into these Islands
except as therein stated, it must bo pre
sumed that that body meant what It
said without any further qualifications. If
any injustice or hardship results from
their act, the responsibility therefor is
upoh the law-makers and not upon this
It is true, I think that the DEPORTA
TION of those Chinese, If any, inlawful
ly In the Hawaiian Islands cannot for the
present be enforced, because the statutes
require that certain proceedings be had
before a United States Judge in order to
establish the unlawfulness of their pres
ence, and no such tribunal as yet exists
here. But it does not follow that because
this is so Congress did not intend that
the provisions of United States laws re- "
lating to the EXCLUSION of those not
yet in the country should take immediate
effect. It may well have been the fact,
and I think that it was, that Congress,
while willing to allow those in the coun
try unlawfully to remain until further
order, was anxious to put an end at once
to any further inlluex.
Under the terms of the Resolution,
when a Chinese person seeks to enter the
Hawaiian Islands, the question of wheth-.
er or not be is entitled to enter is to be
determined in accordance with the United
States laws, in other words, the United
States laws relating to the immigration
and exclusion of Chinese are now the rule
of action here, are in force here, and ap
ply in my opinion to ALL Chinese who
seek to enter.
It is urged that no machinery has been
provided by Congress for the enforcement
of the United States Chinese exclusion
laws in these Islands and that conse
quently it could not have been the in
tention of Congress to make said laws
applicable In tiie cases of those Chinese
who hold return permits fssued nrior to
July 7, ISUH. Assuming that it is true that
there is no machinery as claimed, the ob
jection, if it is good so far as to lead
the Court to hold that it was not the in
tention to give the Resolution a retro
spective operation, must also of necessity
compel tne court to hold that not even
prospective operation can be given to it
until Congress shall by further legislation
provide the means for enforcing the laws.
the only logical conclusion of the argu
ment is, it seems to me, that until such
time United States laws do not apply here
and that Hawaiian laws continue in
force. Yet, that the Hawaiian statutes
so far as they are inconsistent with
United States laws on the subject are
repealed by the Resolution and that the
United States laws are, prospectively, at
least, extended is clear. - Moreover, the
necessary conclusion as just stated would
render the clause in the Resolution inop
erative and meaningless. If Congress had
sirmrly intended to leave matters as they
stood with reference to Chinese immigra
tion until it should further legislate, the
clause would have been omitted; the gen
eral provision continuing existing laws In
force would have been amply sufficient.
The language of the various United
States statutes on the subjects of Chinese
immigration and immigration of other
aliens, are not as clear In their language
as they might be in defining the relative
powers and duties, in the premises, of
Collectors of Customs and of Chinese In
spectors appointed by the Secretary of
the Treasury. Both are given certain
powers to exercise and certain duties to
perform, and between them can fully en
force all Chint'se exclusion laws, but just
where the dividing line between them is,
just what an Inspector can 'do without
the assistance of a Collector, it 13 more
difficult to define. Another question not
free from difficulty is whether the Col
lector of Customs of the Hawaiian Islands
is authorized to perform the various
duties assigned to Collectors by tho
United States Chinese Exclusion Laws,
these Islands not having yet been made
(Continued on Tage Two.)
delicious and wholesome
POWOCR CO., NFW YORK.
?, -1 '1
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