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PACIFIC COMMERCIAL ADVERTISER, J ANUARY 5, 1888.
T EL E Commercial Advertiser ! gior sale daily at the t'ollawlne places: PER Mercnant street EWETT Merchant street IRU31 ...Fort street AHLMANN llawaiian Hotel Five CeutM per Copy. ID AY January 5th :he oldest newspaper. 3 been claimed on behalf cf the Commercial Advertiser that it Idest newspaper in the Hawaiian , having been first published in 855. Whereupon, the "Friend" n f 1 fi i m for rrirr?fv nf V?rtli liiv 'en established in January, 1843. ; we are quite willing to concede atinction to our venerable but di ve contemporary, we may say e have not hitherto been accus- to regard the "Friend" in the f a newspaper, but rather as a ly denominational periodical. are sorry to notice, however, on ng its current issue, that the id" is loth to confine its attention spiritual welfare of its readers, but in rather strong terms to influence political opinions. We are sure he late Dr. Damon, the founder llitor of the "Friend" for so manv never intended its columns to be for political purposes. Every er since the present editor took T n 1 7 1 Qi"7 Vina rAnla!nail t-n on politics. make no secret of the fact that we erae to denominationalisra being fied with politics, because the ncy in such cases generally is to undue precedence to denoraina- 1 interests in preference to those of jeople at large. The Roman Church fever been a political church, and ire calamities which were the out of her assumption of a political h are too well known to need recap- ion. That counter organization of itical-religious nature known as the ze Society, designed to counteract Political ascendency of the Papacy, age when that ascendancy was icfy waning, is another example of Indesirableness of mixing up relig- nd politics. Need we instance the berless broken heads which have time to time been attributable to its ence? Few quarrels are as bitter ligious quarrels, and there are few- pounds of a more explosive nature that produced by the combination ngion auu pontics, ltiereiore as shoemaker is recommended to stick a last, so let the denominationalist public, at least) stick to his denom ion. it tie once cets Ins toot into ties there is no knowing where he stop, or by what depths of sophistry vill seek to persuade us that this or ; public question must be looked at ugh denominational spy glasses of ie particular hue. THE SUPREME COURT. n tnis issue we eivo the unanimous w ision of the Supreme Court in banco, dered yesterday by Chief Justice 3d, on the Constitutionality of the approved November 26th, 18S7, the fention of which was to reduce the mber of the Supreme Court Justices in nve to three. The concurring t7 nion of Justices McCully and Preston o appear, lhey declare the Act un- Btitutional and consequently null and d. Immediately after the decision d been rendered Justices Binkerton d Dole took their seats on the bench, d the Supreme Court is now consti- i ed of five Justices. IIFORTANT DECISION. institutional Organization of the Supreme Court. i Court In Itaueo Declare tlio. Justice Act of November 2Sth, 18S7, Null mill V11. Tlie Decislou in Full. The January term of the Supreme ourt opened at 10 :08 yesterday morn- jig, Judd, C. J., McCully, J., and Pres- pn, J., on the Bench. The King vs. F. J. Testa, libel. OPINION OF THE COURT. The question before us was reserved by r. Justice Bickerton as follows: "On the 3d of January, inst., an indict ent was presented by the Attorney Gen- ral against the defendant and was duly ound a true bill by the Chief Justice. "Subsequently on the same morning I ook my seat upon the Bench and called pon the Attorney General to present the ndictment and take the defendant's plea. "The Attorney General stated that under the circumstances he must decline to pre sent the lnc.'Tnent on the erround that fcy virtue of an Act of the Legislature passed at its sr.ci.'. session, and) approved November 26, 1887, entitled, An Act to re peal an Act entitled an Act relating to the Justices of the Supreme Court, approved October 15, A. D. 18SG, and to re-enact the laws thereby repealed,' my commission had expired and consequently that I had no jurisdiction to take the defendant's plea "Mr. Rosa, on behalf of the defendant contended that the said Act was unconsti tutioual and void, and 1 thereupon, under the pewera conferred upon me by section oi the Civil Code and of all other pow i 1 . . enaoung me, uo Hereby reserve the ueition, that is to say: "Is the said Act of November ', 1S87, constitutional or not? for the considera tion of the Court in Banco." Richard F. Bickerton, Justice of the Supreme Court. January 3, 1888. Mr. Justice Bickerton was appointed and commissioned as Third Associate Justice of the Supreme Court on 23th December, 18S6. The Act of 26th November, 1887, re peals in terms the Act of 1886, in pursuance of which Justice Bickerton was appointed, and re-enacts certain stututes which by that Act were repealed the intention of the Act of 1887 being to repeal the existing provisions of law that the Supreme Court shall consist of a Chief Justice and four Associate Justices, and to provide that it shall consist of a Chief Justice and two Associates. The Constitution, Article 65, provides that the Supreme Court shall consist of a Chief Justice and not less than two Asso ciate Justices. It is within the power of. the Legislature to increase the number of Associate Justices by statute. It is likewise within its power by statute to reduce again the number to not less than two Associate Justices, unless some appointment made under the statute au thorizing the appointment of more than two Associates shall have prevented this. We presume it would be competent for the Legislature in a contingency of their being but a Chief Justice and two Associate Jus tice" in commission, to enact that no fur ther appointments should be made and that they should constitute the Supreme Court. The fact that there was a Third Associate Justice in commission, Mr. Jus tice Bickerton, when the Act of 1887 was passed, raises the question whether this Act, which purports to destroy his office, is constitutional. Before this Act went into effect a Fourth Associate Justice, Mr. S. B. Dole, was ap pointed. The Articles of the Constitution relating to the Supreme Court are from 04 to 73 in clusive. Article 65 of the Constitution pre scribes that the Justices shall hold their of fices during good behavior, subject to re moval upon impeachment and by the Leg islature, for cause, as fully set forth in the said article. This Article defines the ten ure of office of a Justice of the Supreme Court. It is not limited to those who hap pen to be in office when the Constitution was promulgated. The fundamental laws creates the tenure, and prescribes that whoever shall be appointed to this office thereafter shall hold during good behavior. To claim that the Chief Justice and two of the Associate Justices shall hold office by this tenure, and that additional Justices hold subject to the will of the Legislature, would be in effect to admit that they were not Justices of the Supreme Court. The office of a Justice of the Supreme Court is created by the Constitution, which vests the Judicial power of the Kingdom in this one Supreme Court. The Constitu tion has placed this Court beyond the con trol of the Legislature, but adds that this Judicial power is also vested in inferior courts over which the' Legislature has power, for it can create them and pre scribe the tenure of office of the Judges of these Courts. By the 66th Article the Ju dicial power can be distributed by the Leg islature among the Supreme Court and the inferior Courts, but this does not create the office of a Justice of the Supreme Court, or define the tenure bv which it is to be held, nor does any article of the Con stitution grant such power to the Legisla ture!. A Justice of the Supreme Court when appointed holds his office in accordance with Article 65 of the Constitution, that is, during good behavior. A statute, which m terms or by implication, prescribes any other tenure of office would be contrary to j the Constitution. Suppose, for examnle. the Act of 1886 had read that the additional Justices should hold office only so long as the Act remained unrepealed. It would be apparent that this would make the ten ure of their office at the will of the Legis lature, whereas, the Constitution says, they shall hold office during good behavior. But a statute of this nature would be in effect what is claimed for the Act of 1887, under consideration, for it undertakes by repealing the law which authorizes his ap pointment to remove a Justice of the Su preme Court. This cannot be done, for it is not one ot the methods of removal pre scribed by the Constitution. It is claimed that one Legislature cannot bind a succeeding one, and that since the Legislature of 1886 enacted the law pro viding for two additional Justices, the Leg- islatute of 1887 can repeal this law. On this question Chief Justice Marshal of the Supreme Court of the United States savs: The principle asserted is that on Legislature incompetent to repeal any Act which a former Legislature was competent to pass, and that one Legislature cannot abridge the powers of a succeeding Legis lature. The correctness of this principle, so far as respects general legislation, can never be controved. But if an Act be done under a law, a succeeding Legislature can not undo it. The past cannot be recalled by the most absolute power. When, then, a law is in its nature a con tract, when absolute rights have vested under that contract, a repeal of the law cannot divest these rights." Fletcher vs. Peck, 6 Cranch, 87-148. But without deciding whether the acceptance of an office without a definite term amounts to a contract, it is sufficient to say that the organic law of this Kingdom does not con fer upon the Legislature the power to leg islate upon the tenure of office of a Judge of the Supreme Court. It is not a subject within its jurisdiction, and the Legislature is nt competent to pass any law abridging it. The exercise of such a power would be ultra vires. At this late day no ene can seriously question the wisdom of thus placing the Superior Judiciary in a position of com plete independence of the Executive or Legislative branches of the Government. "The independence of the judicial de partment of the Government is at once the anchor of our stability, the prop of our strength, and the shield of our defence." The State v. Jumel 30 La. In The People ex rel. Ballou v, Dubois SunrotiiQ r,. . Tiir i .... -Kwi vutj, vu. lmuuis neia tn&t as the office of Circuit Judge is created by the Constitution, which also fixes the term, though the Legislature may increase the number qf circuits it cannot deprive a Judge of his office and compensation by creating new circuits of the territory from which he was elected. Once elected he holds his office under the Constitution, un less removed by address or impeachment. 23 111. 498. The same Court in the People ex rel. Ballou vs. Bangs, 24 111. 184, reiterated this principle and said of a Circuit Judge whose appointment was under the Constitution : "But there is a Judge still remaining in office.upon whom the burden of performing circuit duties in the twenty-third circuit stiil devolves, and whom the Legislature have not and could not deprive of his office by the passage of any law." Judge Story in Mai tin vs. Hunter's Les see (1 Wheaton 304), in commenting upon Section 1, Article 3 of the Constitution of theiUnited States, which reads as does the Hawaiian Constitution, "The Judges shall hold their offices during good behavior and shall at stated times receive for their serv ices a compensation which shall not be diminished during their continuance in office," says, "Could Congress create or limit any other tenure of the judicial of fice? Could they refuse to pay at stated times, the stipulated salary or diminish it during their continuance in office? But one answer can be given to these questions : It must be in the negative." In People vs. Burbank, 12 California 378, the Supreme Court of that State say that "If the people declare and ordain in their J Constitution that an office shall be held by i a particular tenure, it would be as much a usurpation in the Legislature to alter that tenMre as it would be in the Governor to commission for a longer period than di rected by the Legislature." In an opinion rendered by the Justices of the Supreme Court of Massachusetts to the Governor in B.Cushing 585, they say "If therefore the Legislature should, through inadvertence, constitute a judicial office, and prescribe any other tenure than that prescribed by the Constitution, such provision in the statute must yield to the paramount authority of the Constitution." In the State vs. Jumel, SO Louisiana, An, Part 11, 861, it was held "When a Judge has acquired his office in the mode pre scribed by the Constitution he has a vested right in its emoluments during the term fixed by the Constitution for its duration, and his right cannot be impaired by an act of the Legislature, passed during said term, abolishing the office." But it may be contended that though the Act of 1887 under consideration is inoper ative to remove Mr. Bickerton from his office as a Justice of the Supreme Court, it has shorn him of his functions as a Judge and his judicial power is gone. But power, judicial authority ind jurisdiction consti tute the office of a Judge, and are of the essence of it and inseparable from it, and the office cannot remain and the functions be severed from it. If a judge at all he has all the powers of a Judge. Commonwealth vs. Gamble 62 Pa. 343, reported in American Reports 423, is a strong authority on this point. Here the Legislature established the 20th Judicial District by Act of 28th February, 1868, un der which Judge Gamble was elected'and commissioned presiding Judge of the dis trict. By an Act passed March 16. 1869, the former Act was repealed and the dis trict abolished. Held, that the Act of 1869 was invalid, as being an attempt, substan tially to abolish the office of the presiding Judge of the 29th District. Says the Court, the term of the judicial office is fixed by the Constitution and it is beyond the power of the Legislature to diminish it. The power, authority and jurisdiction of an office are inseparable from it. The Legislature may diminish the aggregate amount of duties of a Judge by a division of his district or otherwise, but must leave his authority and jurisdiction pertaining to the office, intact." The office of a Justice of the Supreme Court is created by the Constitution as is also its tenure and its amenability, and this excludes all other modes, and it must follow that any legislation which infringes upon these is unconstitutional and invalid, and we therefore hold that the Act in question is unconstitutional and void, and Mr. Justice Bickerton had that jurisdiction to take the plea of the defendant. A. F. Judd, Chief Justice Supreme Court. Attorney General Ashford for the Crown, Rosa and Hatch for defendant. Honolulu, January 4, 1888. OPIJilOX OF FIRST ASSOCIATE JUSTICE. In stating my concurrence with the opinion of the Court as delivered by the Chief Justice, it is not necessary to go over the whole ground, as it has been discussed, or to re-state the authorities quoted, or quote further authorities in support of the result we have arrived at. This is not a case in which there is any conflict of au thorities. The Act of 18S6 required that to consti tute the Supreme Court there should be a Chief Justice and four Associate Justices. Article 65 of the Constitution in prescrib ing that the Supreme Court shall consist of a Chief Justice and not less than two Associate Justices, plainly provides for the creation of more than two Associate Jus tices by statute. But when n statute is en acted requiring more than two Associate Justices, and such additional Justices have been commissioned, they become Justices of the Supreme Court. How then can it be considered that the Constitution does not apply to them? By Article 65 Justices hold their offices during good behavior, subject to removal by impeachment or up6n resolution of two-thirds of the Legis lature for good cause shown, after a trial before the Legislature. These terms ex clude a power of removal by any other method. The Constitution controls the Legisla tive power, and when this has limited and prescribed the methods by which a Justice of the Supreme Court may be removed from office, it is not within the power of the Legislature to remove him by another method. But the Act of 1887 directly re moves from office any third or fourth As sociate Justice holding a commission on the 31st day of December. It therefore conflicts with the Constitution. The Act of 1887 was within the Legislative power to enact provided there had been no exist ing appointments under the Act of 1886. The Constitution requiring but three Jus tices of the Supreme Court, no more need be required by the statutes which carry out the requirements of the Constitution. When the statutes enact that there shall be more than three, it is necessary for the legal constitution of the Court that the re quired number shall be commissioned. It is not essential that the whole number shall sit in every case or inany case. The de cisions of a majority of the Justices are final and conclusive, Article 69. By Article 10 no person shall sit as a Judge in any case in which he or his rela tive may have any pecumiary interest. Sickness or temporary absence from the Kingdom may likewise prevent the sitting of all the Justices. If a majority sit and a majority agree in the decision of the case, there is a valid decision of a legal Court. Yet the Court requires for Jis legal status the whole number of Justices to be in com mission. Being in commission the doc trine of vested rights applies. Absolute rights have vested in the holder of the ap pointment for life or good behavior, subject to removal only by prescribed methods, for impeachable cause or for other cause which a two-thirds of the Legislature shall find sufficient and the King satisfactory Article 65. Insanity or physical disability to per form duty.may be instanced as grounds lor the latter procedure. It is not conceivable that the office can be abolished without a violation of the vested rights of a Justice so ousted. The supposable continuance of his salary does not satisfy his rights. He has a right to the powers and honor of the office for the term for which he was elected or ap pointed. We are brought by every course of reas oning to the same result, namely that the appointments under the Act of 1886 are brought under the provisions of the Con stitution that they cannot be dis tinguished from the appointments which the Constitution prescribes shall as a mini mum be made. A conclusion to the contrary would be in conflict with all the authorities and unsup ported by valid reasoning. L. McCully. OPINION OF SECOND ASSOCIATE JUSTICE. 1 concur in the opinion delivered by the Chief Justice, and in the declaration that the Act in question is unconstitutional and therefore void, and have but little to add. It was argued by the Attorney General that as the offices of third and fourth As seciate Justices were created by an Act of the Legislature, therefore the offices might be abolished by another Legislature repeal ing such law, and he also contended that such offices were held by virtue of such law only. But he conceded that if the of fices were held by virtue of the law and under the Constitution, the law in question would be unconstitutional. Article 65 of the Constitution of Kame hameha V provides that the Supreme Court shall consist of a Chief Justice and not less than two Associate Justices, and that the Justices shall hold their offices during good behavior, subject to removal by impeachment, etc. Article 66 provides that the tenure of of fice in the inferior Courts shall be such as shall be defined by the law civvift"tiYmT. The Legislature by the law of 1886, hav ing full authority to do so, enacted that the Supreme Court should consist of a Chief Justice and four Associate Justices. Mr. Justice Bickerton was appointed Third Associate Justice under this Act on the 28th December, 1886, and thereupon became a Justice of the Supreme Court, the only Court established by the Consti tution, and consequently held his office under the section 65, and subject only to removal in terms of such section. This Kingdom had obtained by the Con -stitutibn of Kamehameha III, and that of Kamehameha V. a tenure of office for the Justices of the Supreme Court free and in dependent from the control of the Crown and the Legislature, a position which had only been obtained in some other countries after years of agitation and struggling with the Crown, and it would be in my opinion, a blow to the independence and integrity of the Justices of this Court, if it could be considered an open question as to the power of the Legislature to interfere with or in any way alter the tenure of their offices. The new Constitution in Article 65 adopts the then existing law, and by Article 81 declares that "All officers of this Kingdom at the time this Constitution shall take ef fect shall have, hold and exercise all the power to them granted," ihey being re quired to take an oath to support the Con stitution within sixty days from its pro mulgation. It therefore seems to me that the position of Mr. Justice Bickerton was recognized by the Constitution. I cannot, in conclusion, say more than that great and learned Judge, Chief Justice Marshall, in the case of Marbury vs. Mad ison, "The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is al4?r able when the Legislature shall please to alter it. "If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are ab surd attempts on the part ot the people to limit a power in its own nature illitimit able." The Act in question is in my opinion ab solutely void. Edward Preston. By the above decisions five Justices are declared a constitutional organization of the Court and Mr. Justice Bickerton re sumed his 'place on the bench as third Associate Justice. The Chief Justice then invited Mr. Jus tice Dole to take his seat upon the left of the third Associate Justice, whick he did. After congratulating remarks by His Excellency Attorney General Ashford and Mr. W. O. Smith, an address was made by Mr. Justice Dole in which he out lined the course he would follow. The five Justices then proceeded to hear cases iu banco. At a meeting of Company C of the Hono lula Rifles, held last evening, J. H. Fisher was re-elected Captain. H. C. Mptpn elected 1st Lieutenant, and J. M. Feireira i j-ieutenant. Holiday Goods. Holiday Goods AT COST PEICE. AT Popular Millinery House, 104 "Port St., Honolulu. N. S. SACHS, PBOPEIETOR, Just received, per steamer Australia, a fine selection of goods suitahle for Christinas gifts. Manicure Sets, in Amber 'and Ivory Plush Jewel Cases, Plush and Leather Toilet Cases, Handkerchief and Glove Boxes, Fancy Work Boxes, Faiicv Odor Cases, Fancy Gilt Easels, Fine Toilet Mirrors, Infants' Toilet Sets, Hand Mirrors, Fancy Match Safes, Fancy Cups and Saucers, Whisk Broom Holders, Smokers' Companion, Gents' Shaving Sets, Flush Collar and CutF Boxes, Ktc." E(c These goods are of the newest designs, and of best quality, but on account of the late arrival we have decided to offer Tlie Entire Holiday Stock at Cos, ( Besides the above, we will institute a SPECIAL BARGAIN SALE, commencing TO-DAY, for the holiday season only. Our IPrices "Will Discount .All Others. 1876. BUILDER. 75 and 77 Kinc Street, Bl Telephone No. 275. JO HN Stoves, Ranges and Plumbing, Tin, Copper Til Wmwm imfk M GrOLDBEEG, Campbell Block, Cor. Fort & Merchant Sts JUST RECEIVED, SUITABLE FOR XMAS PRESENTS, and Silver Headed ffaikioc Go Japanese Silk Handkerchiefs, Japanese Handkerchief Holders. LATEST STYLES in NECKWEP t ELEGANT SILK jpLUSH TOILET AND SHAVING CASES, ) And a ipA line fli Custom Made Clothing. GENTS' FURNISHING GOODS, i HATS AND CAT'S, ETC H. EL Mclntyre & I3ro., PORTERS Oroceriesi Provisions and Feed' KASlI CORNER PORT AND KING BTRKKT8. New Goods recelred by very- paenet from the Eastern Stales and Europe. frtb fJlS,J,W Produce by every steamer. JA 11 orders faithfully attended to, and Goods delivered to any part o city free of charare. Islands' urrterii o!SHtri N.iiafinti,.n .n..... Pntnfflca Box Telenhona Nn : . I; . TjHE 1886 " - Honolulu 65 Mutual Telephone So. 65. NOT! Housekeeping Goods. and Sheet Iron Work 7 -:o:- AND DEALERS IN 60I', k 7- J; ( V 1