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 under the constitutions of the several states, and also conceding that the organic act stands in the place of a constitution for the territory of Hawaii, to which its laws must conform, does it follow that the laws respecting proceedings at chambers are in excess of the powers conferred under the organic act?
Bearing in mind that § 81 of the organic act is but one of a hundred sections, all of which are entitled to equal respect, it is evident that to obtain a comprehensive view of the intention of Congress we are bound to consider the whole act so far as it relates to the disposition of judicial power. To segregate § 81 from all the other provisions of the act must necessarily result in giving it undue prominence.
By § 6 'the laws of Hawaii not inconsistent with the Constitution or laws of the United States, or the provisions of this act, shall continue in force, subject to repeal or amendment by the legislature of Hawaii, or the Congress of the United States.' By § 7 the Constitution of the Republic of Hawaii and a large number of its laws, specially enumerated, are repealed; but the statutes giving probate and equity jurisdiction to the circuit courts are not mentioned.
By § 10 all actions at law, suits in equity, and other proceedings then pending in the courts of the Republic of Hawaii shall be carried on to final judgment and execution in the corresponding courts of the territory of Hawaii. As petitioner, Carter, was appointed guardian of the minor's estate in 1899 by the then judge of the first circuit, and was still proceeding to wind up the estate, we think the petition for his removal was filed in a pending proceeding within the meaning of this section.