Alfred Carter v. George Gear

• Citation: 197 U.S. 348,49 L.Ed. 787,25 S.Ct. 491
• Decision Date: 03 April 1905
• Docket Number: No. 442,442
• Parties: ALFRED W. CARTER, Guardian, Plff. in Err. , v. GEORGE D. GEAR, Circuit Judge, etc
• Court: U.S. Supreme Court

197 U.S. 348

25 S.Ct. 491

49 L.Ed. 787

ALFRED W. CARTER, Guardian, Plff. in Err.,

v GEORGE D. GEAR, Circuit Judge, etc.

No. 442.

Submitted March 3, 1905.

Decided April 3, 1905.

This was a writ of error to review a judgment of the supreme court of the Territory of Hawaii denying a writ of prohibition.

The facts of the case are substantially as follows: On July 27, 1904, one Low, as next friend of Annie T. K. Parker, a minor, filed a petition before the defendant, George D. Gear, judge of the first judicial circuit, in probate, at chambers, asking for the removal of Alfred W. Carter, plaintiff in error, as guardian of the estate of said minor. He had been originally appointed such guardian September 29, 1899. The petition was entitled 'In the Circuit Court of the First Judicial Circuit, Territory of Hawaii. In Probate. At Chambers,' and was in fact filed before the circuit judge sitting at chambers. A demurrer was interposed to the petition upon the ground that the circuit judge had no jurisdiction of the proceedings, for the reason that the statute conferring judicial powers upon the judges at chambers was in conflict with the organic act of the territory.

The demurrer was overruled, and the jurisdiction of the court sustained, apparently with some doubt, by the circuit judge.

This petition for a writ of prohibition was then filed by Carter in the supreme court of the territory against the defendant, Gear, as circuit judge, and Low, the next friend of Annie T. K. Parker, praying that the said circuit judge be prohibited from taking further cognizance of the petition for the removal of Carter, or proceeding therein until the further order of the supreme court. After a full hearing the supreme court affirmed the judgment of the circuit court, and dismissed the petition.

Messrs. Joseph J. Darlington and William F. Mattingly for plaintiff in error.

[Argument of Counsel from pages 349-350 intentionally omitted] Mr. John S. Low, guardian, in propria persona.

[Argument of Counsel from pages 350-352 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

The writ of prohibition was demanded upon the ground that there was no cause pending in the circuit court of the first circuit, to which the motion and petition of Low, as next friend, was incidental or ancillary, and that Judge Gear, sitting at chambers, was hearing questions of a judicial nature entirely independent of any cause pending in that court.

The single question presented by the record is whether the statutes of the territory of Hawaii, purporting to confer upon the judges of the several courts, at chambers, within their respective jurisdictions, judicial power not incident or ancillary to some cause pending before a court, were in conflict with § 81 of the act of Congress approved April 30, 1900 (31 Stat. at L. 141, chap. 339), commonly known as the organic act of the territory. This section, page 157, enacts that 'the judicial power of the territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. And, until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force, except as herein otherwise provided.'

At the time the act of Congress was passed there was in force in the territory of Hawaii an act known as chapter 57 of the Laws of 1892, the 37th section of which gave to the judges of the several circuit courts, at chambers, very ample powers in admiralty, equity, bankruptcy, and probate causes, among which were proceedings 'to remove any executor, administrator, or guardian.' This act was conceded to be sufficient to justify the action of Judge Gear in removing the guardian in this case. It was substantially re-enacted with amendments in 1903.

The argument is made that § 81 of the organic act is identical with the constitutional provisions of many states, under which similar statutes purporting to confer judicial powers upon circuit judges at chambers, not incident to, or ancillary to, any cause pending in any court, have usually been declared unconstitutional; citing Spencer Creek Water Co. v. Vallejo, 48 Cal. 70; Risser v. Hoyt, 53 Mich. 185, 18 N. W. 611; Toledo, A. A. & G. T. R. Co. v. Dunlap, 47 Mich. 456, 11 N. W. 271; Rowe v. Rowe, 28 Mich. 353; Pittsburg, Ft. W. & C. R. Co. v. Hurd, 17 Ohio St. 144, 146; State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S. W. 252. We are also referred to McKnight v. James, 155 U. S. 685, 39 L. Ed. 310, 15 Sup. Ct. Rep. 248, in which we held that a writ of error could not go to an order of a judge of a circuit court, made at chambers.

But, conceding the correctness of these decisions...