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cised for such a purpose. It is further ob-y on this subject: Mugler v. Kansas, 123 U. jected that the infringement upon property S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. rights by these acts is unreasonable and dis- Rep. 273; Minnesota v. Barber, 136 U. S. proportioned to any public necessity, and 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. also that the distinction between 125 feet Rep. 185, 10 Sup. Ct. Rep. 862; Jacobson v. for the height of buildings in the commer. Massachusetts, 197 U. S. 11, 28, 49 L. ed. cial districts described in the acts, and 80 643, 650, 25 Sup. Ct. Rep. 358, 3 A. & E. to 100 feet in certain other or so-called res. Ann. Cas. 765; Lochner v. New York, 198 idential districts, is wholly unjustifiable and U. S. 45, 57, 49 L. ed. 937, 941, 25 Sup. Ct. arbitrary, having no well-founded reason Rep. 539, 3 A. & E. Ann. Cas. 1133; Chicafor such distinction, and is without the least go, B. & Q. R Co. v. Illinois, 200 U. S. 561, reference to the public safety, as from fire, 593, 50 L. ed. 596, 609, 26 Sup. Ct. Rep. and inefficient as means to any appropriate 341, 4 A. & E. Ann. Cas. 1175. end to be attained by such laws.

In passing upon questions of this charIn relation to these objections the counsel acter as to the validity and reasonableness for the plaintiff in error, in presenting his of a discrimination or classification in relacase at bar, made a very clear and able ar- tion to limitations as to height of buildings gument.

in a large city, the matter of locality asUnder the concession of counsel, that the sumes an important aspect. The particular law limiting the height of buildings to 125 circumstances prevailing at the place or in feet is valid, we have to deal only with the the state where the law is to become operaquestion of the validity of the provisions tive,—whether the statute is really adapted, stated in these statutes and in the condi. regard being had to all the different and tions provided for by the commissions, limit. material facts, to bring about the results deing the height in districts B between 80 and sired from its passage; whether it is well 100 feet.

calculated to promote the general and pubWe do not understand that the plaintiff lic welfare,-are all matters which the state in error makes the objection of illegality court is familiar with; but a like familiar. arising from an alleged delegation of legisla-lity cannot be ascribed to this court,*assumtive power to the commissions provided for ing judicial notice may be taken of what is by the statutes. At all events, it does not or ought to be generally known. For such raise a Federal question. The state court reason this court, in cases of this kind, feels holds that kind of legislation to be valid the greatest reluctance in interfering with under the state Constitution, and this court the well-considered judgments of the courts will follow its determination upon that of a state whose people are to be affected by question.

the operation of the law. The highest court We come, then, to an examination of the of the state in which statutes of the kind question whether *these statutes with refer- under consideration are passed is more ence to limitations on height between 80 and familiar with the particular causes which 100 feet, and in no case greater than 100 led to their passage (although they may be feet, are valid. There is here a discrimina of a public nature) and with the general tion or classification between sections of the situation surrounding the subject-matter of city, one of which, the business or commer. the legislation than this court can possibly cial part, has a limitation of 125 feet, and be. We do not, of course, intend to say that, the other, used for residential purposes, has under such circumstances, the judgment of a permitted height of buildings from 80 to the state court upon the question will be 100 feet.

regarded as conclusive, but simply that it is The statutes have been passed under the entitled to the very greatest respect, and exercise of so-called police power, and they will only be interfered with, in cases of this must have some fair tendency to accomplish, kind, where the decision is, in our judgment, or aid in the accomplishment of, some pur- plainly wrong. In this case the supreme ju. pose for which the legislature may use the dicial court of the state holds the legislation power. If the statutes are not of that kind, valid, and that there is a fair reason for the then their passage cannot be justified under discrimination between the height of buildthat power. These principles have been so ings in the residential as compared with the frequently decided as not to require the cita-commercial districts. That court has also tion of many authorities. If the means em held that regulations in regard to the height ployed, pursuant to the statute, have no of buildings, and in regard to their mode of real, substantial relation to a public object construction in cities, made by legislative which government can accomplish, if the enactments for the safety, comfort, or con: statutes are arbitrary and unreasonable, venience of the people, and for the benefit and beyond the necessities of the case, the of property owners generally, are valid. courts will declare their invalidity. The Atty. Gen. v. Williams (Knowlton v. Wil. following are a few of the many cases up-' liams) 174 Mass. 476, 47 L.R.A. 314, 55


N. E. 77. We concur in that view, assum- residential part, be more wooden buildings, ing, of course, that the height and condi- the fire apparatus may be more widely scattions provided for can be plainly seen to be tered, and so situated that it would be more not unreasonable or inappropriate.

difficult to obtain the necessary amount of In relation to the discrimination or classi: water, as the residence*quarters are more fication made between the commercial and remote from the water front, and that many the residential portion of the city, the state women and children spend the day in that court holds in this case that there is rea- section, and the opinion is not strained that sonable ground therefor, in the very great an undiscovered fire at night might cause value of the land and the demand for space great loss of life in a very high apartment in those parts of Boston where a greater house in that district. These are matters number of buildings are used for the purpos- which, it must be presumed, were known by es of business or commercially than where the legislature, and whether or not such were the buildings are situated in the residential the facts wae a question, among others, for portion of the city, and where no such the legislature to determine. They are asreasons exist for high buildings. While so serted as facts in the brief of the counsel for deciding, the court cited, with approval, the city of Boston. If they are, it would Com. v. Boston Advertising Co. 188 Mass. seem that ample justification is therein 348, 69 L.R.A. 817, 108 Am. St. Rep. 494, 74 found for the passage of the statutes, and N. E. 601, which holds that the police power that the plaintiff in error is not entitled to cannot be exercised for a merely esthetic compensation for the reasonable interference purpose. The court distinguishes between with his property rights by the statutes. the two cases, and sustains the present stat. That, in addition to these sufficient facts, utes. As to the condition adopted by the considerations of an esthetic nature also commission for permitting the erection, in entered into the reasons for their passage, either of the districts B, that is, the residen- would not invalidate them. Under these tial portion, of buildings of over 80 feet, circumstances there is no unreasonable inbut never more than 100, that the width on terference with the rights of property of each and every public street on which the the plaintiff in error, nor do the statutes debuilding stands shall be at least one half its prive him of the equal protection of the height, the court refuses to hold that such laws. The reasons contained in the opinion condition was entirely for esthetic reasons. of the state court are, in our view, sufficient The chief justice said: “We conceive that to justify their enactment. The judgment is the safety of adjoining buildings, in view of therefore affirmed. the risk of the falling of walls after a fire,

(214 U. S. 108) may have entered into the purpose of the

KAIMIOLA NAKOOKOO GRAY, Appt., commissioners. We are of opinion that the statutes and the orders of the commission.

DAVID NOHOLOA. ers are constitutional”

We are not prepared to hold that this limi- COURTS (8 387*) – TERRITORIAL COURTS tation of 80 to 100 feet, while in fact a dig.


BENT FINDINGS. crimination or classification, is so unreason

1. Concurrent findings of the two lower able that it deprives the owner of the prop courts on the question as to what is the erty of its profitable use without justifica correct English translation of a will written tion, and that he is therefore entitled under in the Hawaiian language will be followed the Constitution to compensation for such by the Supreme Court of the United States invasion of his rights. The discrimination on appeal from the Hawaiian supreme court. thus made is, as we think, reasonable, and Dig. § 1037; Dec. Dig. $ 387. "]

(Ed.' Note.-For other cases, see Courts, Cent. is justified by the police power.

WILLS (8 449*)-PARTIAL INTESTACY. It might well be supposed that taller build 2. The intention of the testatrix, a leper, ings in the commercial section of the city residing at the leper settlement at Kalaupa. might be less dangerous in case of fire than pa, Hawaii, to give to her husband not only in the residential portion. This court is not the property which she left situated at that familiar with the actual facts, but it may place, but also all other property owned by be that, in this limited commercial area, character, clearly appears from a gift to

her, wherever situated, and of whatever the high buildings are generally of fireproof her husband of "all property known belongconstruction; that the fire engines are more ing to me and appearing in my name, sitnumerous and much closer together than in uate at Kalaupa pa,” describing it as three the residential portion, and that an unlimit- horses and a wooden house, and “other ed supply of salt water can be more readily houses owned by me, as well as all other introduced from the harbor into the pipes, property owned by me." and that few women or children are found Dig. § 965; Dec. Dig. $ 449.*)

[Ed. Note.-For_other cases, Wills, Cent. there in the davtime, and very few people sleep there at night. And there may, in the

(No. 174.] *For other cases see same topic & & NUMBER IA Dec. & Am. Digs. 1907 to date, & Rep'r Indexes


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Submitted April 20, 1909. Decided May 17, pellant herein, and a niece of the deceased 1909.

testatrix, in which petition it was averred

that the will of the testatrix, which was ofAPPEAL from the Supreme Court of the fered for probate, did not dispose of any prop A Territory of Hawaii to review a decree erty other than which was within and at the which affirmed a decree of the Circuit Court leper settlement, and that the testatrix, at of the Second Circuit of that territory, re the time of her death, owned other property fusing to grant letters of administration outside of the settlement, of the assessed upon a portion of the property of a testa-value of several thousand dollars, and it trix, as to which she was alleged to have was averred that there was no person who died intestate. Affirmed.

could lawfully demand settlement of the See same case below, 18 Haw. 265. people who had possession of the property

outside of the settlement, and therefore the Statement by Mr. Justice Peckham: petitioner asked for the appointment of *The appellant herein appeals from the de- some suitable person as administrator of the cree of the supreme court of the territory estate of which decedent died intestate, and of Hawaii. The facts relating to the case that due notice might be given thereof. are as follows:

Subsequently to the filing of this petition Hikaalani Hobron Noholoa was a resident the probate court duly admitted the will as of the island of Molokai, territory of Ha- translated by the court to probate, and also waii, which is called the leper settlement, denied the petition of the niece for letters and was a leper, about seventy-five years of of administration upon that portion of the age, at the time of her death, on or about land of deceased which she asserted was not the 29th of June, 1906. Deceased left a included in the will. The translation of husband, who was also a resident of the the will which she put in evidence in her settlement and a leper, and a niece, the ap- proceeding was the same one that was made pellant, Kaimiola Nakookoo Gray, also re- by the court in the proceeding to admit the siding on the island, and two grandnieces, will to probate. being minors, residing in Honolulu. She Kaimiola Nakookoo Gray duly appealed left a will written in the Hawaiian lan. from the order or decree of the probate guage, of which the following was taken court, refusing to grant letters of adminis. as a translation by the courts below: tration, as petitioned for, and the appeal was

“I, the undersigned, a leper residing at duly argued, without objection, in the su. Kalau papa, island of Molokai, territory of preme court of the territory, upon the same Hawaii, do make this my last will for all translation of the will, and the decree was property known belonging to me and appear. affirmed. ing in my name situate at Kalau papa afore | A motion was then made for a rehearing said, with good will (or intention) do hereby of the case, and upon that motion, for the bequeath the same as hereinafter described: first time, ex parte affidavits were used on One gray horse, one bay mare; one black behalf of the appellant in regard to the mare; one frame wooden house and other translation of the will of testatrix. houses owned by me, as well as all other | These affidavits asserted that the translaproperty owned by me, to my husband David

tion adopted, and most of it made, by the Noholoa, residing at Kalaupapa aforesaid,

probate court, *and adopted by the supreme to him and to his heirs, administrators and

court upon a hearing, without protest or executors forever. Renouncing all claims

question on her part, was not an accurate that my relatives may set up in law to

translation, and the following was asserted this.”

to be the true translation: The above will was duly admitted to probate

“I, the undersigned, a leper residing at in the circuit court of the second circuit of the territory on the 12th day of December,

Kalaupapa, island of Molokai, territory of

Hawaii, make this my last testament con1906, and, upon petition duly made, the court granted letters of administration with

cerning all chattels known as mine and in the will annexed to Enoch Johnson, who

my possession, being in Kalaupapa aforethereupon received such letters, and entered mentioned; with sane mind I bequeath all upon his duties as such administrator.

those said goods of mine described as fol. * After the application on the part of the

lows, to wit, husband for the probate of the will of his "1 Creamed-colored horse, wife, and after the filing of the same with “1 Bay mare, the clerk of the circuit court, but before the

rcuit court, but before the “1 Black mare, granting of letters of administration to “I Wooden house together with certain Enoch Johnson, as prayed for by the hus- other houses, and all other chattels belongband, a petition was filed with the same ing to me, to my husband, David Noholoa, court by Kaimiola Nakookoo Gray, the ap- residing at said Kalaupapa and to his heirs




and assigns forever. My heirs shall not does the evidently defective translation that have any right to claim these at law. the intention was to dispose of ‘also all the

"In witness whereof I hereunto subscribe other property known to be mine.' The de my name this 18th day of November, 1901.” cedent evidently knew well what her prop

The court refused to accept such transla- erty at Kalaupapa was, and there is no tion or to set aside or correct the transla reason to suppose that she did not know of tion already made and adopted by it, and the property in Honolulu.” (18 Haw. 266.] thereupon denied the motion for a rehear. So that whether the translation adopted by ing, Frear, Chief Justice, dissenting.

the court below and the supreme court From the decree of affirmance, Kaimiola was defective or not, the view of the latter Nakookoo Gray has appealed to this court. court was that a correct translation showed

the intention of the testatrix to dispose of Messrs. David L. Withington, J. Alfred all her property, or, as the court said, "alMagoon, and J. Lightfoot for appellant. so all the other property known to be

Messrs. William L. Stanley, Clarence mine.” H. Olson, and Henry Holmes for appellee. As the two courts below have determined

the question of fact, we follow our usual Mr. Justice Peckham, after making the course in such cases, and adopt the translaforegoing statement, delivered the opinion tion of the will which they have adopted. of the court:

The legal question then arising is, What The sole question in this case is whether did the testatrix mean by her will? Her property which belonged to testatrix in her intention is to be derived from her lan. lifetime, and was situated outside of the guage, and we are of opinion that the lower leper island, or settlement, at the time of court was correct in its construction as her death, passed by her will.

given to us. The appellant asserts that the translation A perusal of the will as translated and of the will, although made by one and adopted by the courts below leaves us in no adopted by both courts below without op: doubt that the testatrix's intention was to position, and offered on her part in this give to her husband, not only the property proceeding, both in the trial court and upon which she left situated at Kalau papa, but alreview, is nevertheless, inaccurate; that the so all other property owned by her, wherever translation which she submitted in her mo- it might be situated and whatever it might be. tion for a rehearing, as contained, in cer. We do not think she intended to die intestain ex parte affidavits, is the more accu tate as to any portion of her property, or rate of the two, and, if it were adopted, the to limit her bounty to her husband to such original will in such case, as so translated, property only as was situated at Kalau papa. would not dispose of any property which be The decree of the Supreme Court of the longed to the testatrix at the time of her Territory is therefore affirmed. death, situated outside of the leper settlement; and, as no executor was appointed in

(214 U. S. 113) the will, the petition of the appellant for

GEORGE D. COLLINS, Piff. in Err., the appointment of an administrator with the will annexed as to all outside property THOMAS F. O'NEIL, Sheriff of the City of which the testatrix died intestate should,

and County of San Francisco, State of as she claims, have been granted, and to California, et al. [No. 241.] that end the order should be reversed.

What is the correct English translation GEORGE D. COLLINS, Appt., of the original will in this case, written in the Hawaiian language, is a pure question SHERIFF OF THE CITY & COUNTY OF of fact.


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SAN FRANCISCO, State of California, et The record shows that Judge Kepoikai,

al. (No. 320.] judge of the probate branch of the circuit EXTRADITION ($ 19*; PROSECUTION FOR court, second circuit, himself translated, at OTHER CRIME_OPPORTUNITY TO RETURN. least in part, the will now before us for con 1. Immunity from trial for an offense struction. The record discloses no objection committed by a person after his extradition

until he has been afforded an opportunity to or opposition to such translation, or any criticism of its accuracy at that time. The return to the country whence he was ex

tradited was not given by the provisions of supreme court, on appeal, used the same

the treaties with Great Britain of August 9, translation, without criticism or opposition, 1842 (8 Stat. at L. 576), and July 12, 1889 as had been used by the trial court, and. (26 Stat. at L. 1508, 1509), or of U. S. Rev. upon that translation, affirmed the decree. Stat. § 5275, U. S. Comp. Stat. 1901, p. 3596, Mr. Justice Hartwell, in writing the opin. under which such immunity as to prior of. ion of the supreme court, said: "The fenses only is secured.

[Ed. Note.--For other cases, see Extradition, original of the will shows more clearly than Cent. Dig. $$ 22-24; Dec. Dig. 's 19.*]

*For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rop'r Indexes


British Columbia, and proper demand, unSUBSEQUENT OFFENSE.

der the treaty between the United States 2. An extradited person is given no right and Great Britain, being made for his surto have the trial of the offense for which he render upon that indictment for trial, he was extradited brought to a conclusion be. fore he can be tried for an offense subse. was, on October 7, 1905, duly surrendered, quently committed by the provisions of the and removed from Victoria by one Gibson, treaties with Great Britain of August 9, the agent designated in the Canadian extra1842, and July 12, 1889, or of U. Š. Rev. dition warrant, to San Francisco, where he Stat. § 5275, U. S. Comp. Stat. 1901, p. was placed in the custody of the then sher3596, under which he is entitled to a reason iff, who also had a bench warrant issued able time to return to the country whence he from the superior court on the perjury inwas extradited before he can be tried for dictment against the plaintiff in error. another offense committed prior to his extradition.

His trial upon the indictment upon which (Ed. Note.-- For other cases, see Extradition, he had been extradited began in San FranCent. Dig. $S 22-24; Dec. Dig. $ 19. ]

cisco in December, 1905, and resulted in the

disagreement of the jury on the 23d of De[Nos. 241 and 320.)

cember of that year, and the case was then Argued and submitted April 6, 1909. De continued, to be thereafter reset for trial,

Upon the trial of the indictment for which cided May 17, 1909.

plaintiff in error was extradited, he was N ERROR to the Supreme Court of the himself sworn, and testified as a witness,

I , ,

dismissing a writ of habeas corpus to in. had given such evidence, he was indicted quire into a detention under a conviction for again by the grand jury of San Francisco an offense committed by the accused subsecounty, the indictment charging him with quent to his extradition. Affirmed. Also perjury committed on December 12, 1905,

PPEAL from the Circuit Court of the while testifying on his own behalf on the

A , .

trict of California to review an order dig. on this indictment in January, 1906, and missing a similar writ. Affirmed.

after he had made all objections to his being See same case below, in No. 241, 151 Cal. arrainged or placed on trial on this second 310, 90 Pac. 827, 91 Pac. 397.

indictment until the conclusion of the first,

and until he had then been afforded oppor. Statement by Mr. Justice Peckham: tunity to return to Victoria, he was, never• In No. 241, the plaintiff in error, being theless, brought to the bar and the trial proimprisoned in the county jail of San Fran. ceeded with, resulting in a verdict of guilty cisco, in the state of California, by the sher. on February 27, 1906, upon which judgment iff, applied to the supreme court of that

was entered that he be imprisoned in the state in banc for a writ of habeas corpus to state prison for the term of fourteen years. obtain his discharge from imprisonment. From at judgment he appealed to the The writ was granted, and, after hearing, district court of * appeal of California, was dismissed, and the petitioner remanded where it was affirmed, and thereafter he to the custody of the sheriff. 151 Cal. 340, applied to the state supreme court for a re70 Pac. 827, 91 Pac. 397. A writ of error hearing by that court, which was denied. was then sued out from this court and the People v. Collins, 6 Cal. App. 492, 92 Pac. case brought here.

513. In No. 320, the appellant applied to the Thereupon the plaintiff in error, being circuit court of the United States for the restrained of his liberty, as well under the northern district of California for a similar judgment of conviction, as otherwise under writ, which was issued, and a hearing had, the extradition warrant, applied to the and the writ dismissed by the court. 149 state supreme court for a writ of habeas Fed. 573, and see 151 Fed. 358, 154 Fed. corpus, as above stated, contending that his

980. From the order of dismissal an ap- conviction and sentence were void and in ne peal was allowed to this court. The two excess of the jurisdiction of the state court, cases have been heard here as one.

as being in contravention of his extradition The material facts are these: On July rights under the treaty between the United 13, 1905, an indictment was found by the states and Great Britain, and § 5275 of grand jury of San Francisco county, Cali- the United States Revised Statutes (U. S. fornia, against the plaintiff in error char: Comp. Stat. 1901, p. 3596), set forth in the ging him with the crime of perjury, alleged margin. to have been committed in San Francisco on June 30 of that year. The plaintiff in *U. S. Rev. Stat. § 5275, U. S. Comp. error not being found within the state, was Stat. 1901, p. 3596. subsequently discovered was in Victoria, “Whenever any person is delivered by

•For other cases see same topic & $ NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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