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The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, January 05, 1888, Image 2

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn85047084/1888-01-05/ed-1/seq-2/

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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.
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.
n tnis issue we eivo the unanimous
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
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.
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.
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
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.
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
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.
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
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
Popular Millinery House,
104 "Port St., Honolulu.
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.
75 and 77 Kinc Street,
Bl Telephone No. 275.
Stoves, Ranges and
Plumbing, Tin, Copper
Til Wmwm imfk
Campbell Block, Cor. Fort & Merchant Sts
and Silver Headed ffaikioc
Japanese Silk Handkerchiefs,
Japanese Handkerchief Holders.
And a ipA line fli Custom Made Clothing.
H. EL Mclntyre & I3ro.,
Oroceriesi Provisions and Feed'
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; .
" - Honolulu
Mutual Telephone So. 65.
Housekeeping Goods.
and Sheet Iron Work
( V

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