Nhsc-v1-361

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nhsc-v1-361

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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).

101/ (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, 733 (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.

105/ 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

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