Reid Ginoza at 05:00, 13 May 2006

2006-05-13T05:00:21Z

Reid Ginoza at 22:44, 10 March 2006

2006-03-10T22:44:27Z

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Constitution (see discussion in text
below, page 342). Also, the opinion
does not state that the 1840
Constitution operated so as to vest
title to the Crown and Government
lands in the native Hawaiians. To the
extent that it may imply that the 1840
Constitution did vest title, such an
interpretation cannot be reconciled
with the language of Thurston v.
Bishop.
100/ Thurston v. Bishop, 7 Haw.
421, 433 (1888).
10V (1847) Hawaii Laws 107 (2
Revised Laws (1925) at 2120); cited by
Levy, p. 853.
102/ Thurston v. Bishop, 7 Haw.
421, 428-429 (1888).
103/ Hobbs, p. 41, note 17.
104/ Ibid.
105/ Lorrin A. Thurston, The
Fundamental Lav of Hawaii, 155,
156-168 (1904). Nor is it found in
the Constitutions of 1864, 1887 or
1894 (Thurston, 169-194, 201-242).
See also Hanifin, pp. 26-27.
106/ 16 C.J.S., Constitutional
Law, $42 (1956).
107/ Ex parte Palm, 238 N.W. 732,
7 33 (S~.Ct. Mich. 1931), cert, denied,
285 U.S. 547 (1932). This case
rejected the argument that a provision
in the first State Constitution of
1835 that was not found in any of the
subsequent State Constitutions was
still in force. See also In re
Advisory Opinion to the Governor, 112
So. 2d. 843, 847 (S.Ct. Fla. 1959)
which held that the omission of
language from the State Constitution
that had appeared in the State's
previous constitutions should be
presumed to be an intentional
omission.
10b/ Rex v. Booth, 2 Haw. 616,
524-625 (1863).
109/ Ahlo v. Smith, 8 Haw. 420,
423 (1892). "...loss of...[a right]
through promulgation of a new
Constitution is by 'due process of
law' of the most pronounced character"
(8 Haw. at 424). It should be noted
that Article 91 of the 1894
Constitution expressly abrogated "all
other Constitutions" of Hawaii
(Thurston, p. 235). [Emphasis added].
110/ Hobbs, p. 41, note 17, and p.
40.
111/ Rose v. Yoshimura, 11 Haw.
30, 32 (1897); Kenoa v. Meek, 6 Haw.
63, 67 (1872); and Kanaina v. Long, 3
Haw. 332, 334-335 (1872). In
Territory v. Gay, 26 Haw. 382, 402
(1922), the Great Mahele was held to
have itself created "no estate in
lands." While this language may refer
principally to individual Hawaiians,
it strongly implies that the Great
Mahele did not operate so as to vest
title in native Hawaiians as a group.
Moreover, the opinion in State v.
Zimring, 58 Haw. 106 (1977) implies
that the sole source of title, if any,
was the 1840 Constitution and not the
Great Mahele (58 Haw. at 111-112).
112/ Kenoa v. Meek, 6 Haw. 63,
66-67 (1872); and Kanaina v. Long, 3
Haw. 332, 334-335 (1872). See also In
re Austin, 33 Haw. 832, 838-839
(1936); and Territory v. Gay, 26 Haw.
382, 402-403 (1922). In Kenoa v.
Meek, reference is made to the right
of the particular claimant "in common
with all other Konohikis" as having
been barred (6 Haw. at 66).
Commenters did not cite any of the'
decisions of the Hawaiian Supreme
Court (see, e.g., OHA's Comments,
"Footnotes").
This common right was subject to
statutes of limitations. Claims of
native tenants not presented and
proven by May 1, 1854, were "forever
barred" (Act of May 26, 1853 [1853]
Hawaii Laws 26 (2 Revised Laws (1925)
at 2145); cited by Levy, p. 856.
Claims of konohiki that were not
presented by January 1, 1895, were
361

@@ Line 8: / Line 8: @@
 Constitution did vest title, such an
 interpretation cannot be reconciled
-with the language of Thurston v.
+with the language of <u>Thurston</u> v.
 Bishop.
 / Thurston v. Bishop, 7 Haw.
 , 433 (1888).
-V (1847) Hawaii Laws 107 (2
 Revised Laws (1925) at 2120); cited by
 Levy, p. 853.
 / Thurston v. Bishop, 7 Haw.
 , 428-429 (1888).
 / Hobbs, p. 41, note 17.
-/ Ibid.
+<u>103</u>/ Hobbs, p. 41, note 17.
 / Lorrin A. Thurston, The
-Fundamental Lav of Hawaii, 155,
+<u>104</u>/ <u>Ibid</u>.
 -168 (1904). Nor is it found in
 the Constitutions of 1864, 1887 or
 (Thurston, 169-194, 201-242).
 See also Hanifin, pp. 26-27.
 / 16 C.J.S., Constitutional
-Law, $42 (1956).
+<u>106</u>/ 16 C.J.S., <u>Constitutional Law</u>, $42 (1956).
 / Ex parte Palm, 238 N.W. 732,
-33 (S~.Ct. Mich. 1931), cert, denied,
+<u>107</u>/ <u>Ex parte Palm</u>, 238 N.W. 732,
 U.S. 547 (1932). This case
 rejected the argument that a provision
@@ Line 34: / Line 41: @@
 that was not found in any of the
 subsequent State Constitutions was
-still in force. See also In re
+still in force. See also <u>In re Advisory Opinion to the Governor</u>, 112
 So. 2d. 843, 847 (S.Ct. Fla. 1959)
 which held that the omission of
@@ Line 43: / Line 49: @@
 presumed to be an intentional
 omission.
-b/ Rex v. Booth, 2 Haw. 616,
 -625 (1863).
 / Ahlo v. Smith, 8 Haw. 420,
 (1892). "...loss of...[a right]
 through promulgation of a new
@@ Line 55: / Line 63: @@
 other Constitutions" of Hawaii
 (Thurston, p. 235). [Emphasis added].
 / Hobbs, p. 41, note 17, and p.
-.
+<u>110</u>/ Hobbs, p. 41, note 17, and p. 40.
 / Rose v. Yoshimura, 11 Haw.
-, 32 (1897); Kenoa v. Meek, 6 Haw.
+<u>111</u>/ <u>Rose</u> v. <u>Yoshimura</u>, 11 Haw.
-, 67 (1872); and Kanaina v. Long, 3
+, 32 (1897); <u>Kenoa</u> v. <U>Meek</u>, 6 Haw.
 Haw. 332, 334-335 (1872). In
-Territory v. Gay, 26 Haw. 382, 402
+<u>Territory</u> v. <u>Gay</u>, 26 Haw. 382, 402
 (1922), the Great Mahele was held to
 have itself created "no estate in
@@ Line 69: / Line 78: @@
 Mahele did not operate so as to vest
 title in native Hawaiians as a group.
-Moreover, the opinion in State v.
+Moreover, the opinion in <u>State</u> v.
-Zimring, 58 Haw. 106 (1977) implies
+<u>Zimring</u>, 58 Haw. 106 (1977) implies
 that the sole source of title, if any,
 was the 1840 Constitution and not the
 Great Mahele (58 Haw. at 111-112).
 / Kenoa v. Meek, 6 Haw. 63,
--67 (1872); and Kanaina v. Long, 3
+<u>112</u>/ <u>Kenoa</u> v. <u>Meek</u>, 6 Haw. 63,
-Haw. 332, 334-335 (1872). See also In
+-67 (1872); and <u>Kanaina</u> v. <u>Long</u>, 3
-re Austin, 33 Haw. 832, 838-839
+Haw. 332, 334-335 (1872). See also <u>In re Austin</u>, 33 Haw. 832, 838-839
-(1936); and Territory v. Gay, 26 Haw.
+(1936); and <u>Territory</u> v. <u>Gay</u>, 26 Haw.
-, 402-403 (1922). In Kenoa v.
+, 402-403 (1922). In <u>Kenoa</u> v.
-Meek, reference is made to the right
+<u>Meek</u>, reference is made to the right
 of the particular claimant "in common
 with all other Konohikis" as having
@@ Line 88: / Line 97: @@
 Court (see, e.g., OHA's Comments,
 "Footnotes").
 This common right was subject to
 statutes of limitations. Claims of
@@ Line 95: / Line 105: @@
 Hawaii Laws 26 (2 Revised Laws (1925)
 at 2145); cited by Levy, p. 856.
-Claims of konohiki that were not
+Claims of <u>konohiki</u> that were not
 presented by January 1, 1895, were
+{{p|361}}

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Reid Ginoza at 05:00, 13 May 2006

Reid Ginoza at 22:44, 10 March 2006