Newspaper Page Text
PACIFIC COMMERCIAL ADVERTISER, JANUARY g, 1888.
THE Pacific Commercial Advertiser rs uovr tor sale daily at the Following places: J. H. SOPER .... Merchant street A. M. HEWETT Merchant street T. U. THRUM Fort street WM. 8TRAIILMANN Hawaiian Hotel Five Cents per Cly. THURSDAY January 5th THE OLDEST NEWSPAPER. It has been claimed on behalf of the Pacific Commercial Advertiser that it is the oldest newspaper in the Hawaiian Islands, having been first published in July, 1855. "Whereupon, the "Friend" puts in a claim for priority of birth, hav ing been established in January, 1843. Wkilat we are quite willing to concede that distinction to our venerable but di minutive contemporary, we may say that we have not hitherto been accus tomed to regard the "Friend" in the light of a newspaper, but rather as a monthly denominational periodical. We are sorry to notice, however, on perusing its current issue, that the "Friend" is loth to confine its attention to the spiritual welfare of its readeis.lmt assays in rather strong terms to influence their political opinions. We are sure that the late Dr. Damon, the founder and editor of the "Friend" for so many years, never intended its columns to be open for political purposes. Every number since the present editor took charge (July, 1887) has contained an article on politics. We make no secret of the fact that we are averse to denominationalisrn being identified with politics, because the tendency in such cases generally is to give undue precedence to denomina tional interests in preference to those of the people at large. The Roman Church has ever been a political church, and the dire calamities which were the out come of her assumption of a political status are too well known to need recap itulation. That counter organization of a political-religious nature known as the Orange Society, designed to counteract the political ascendency of the Papacy, in an age when that ascendancy was alreacfy waning, is another example of the undesirableness of mixing up relig ion and politics. Need we instance the numberless broken heads which have from time to time been attributable to its existence? Few quarrels are as bitter as religious quarrels, and there are few compounds of a more explosive nature then that produced by the combination of religion and politics. Therefore as the shoemaker is recommended to stick to hia last, so let the denominationalist " (in public, at least) stick to his denom Nation. If he once gets his foot into politics there is no knowing where he will stop, or by what depths of sophistry he will seek to persuade us that this or that public question must be looked at through denominational spy glasses of some particular hue. THE SUPREME COURT. In this issue we give the unanimous decision of the Supreme Court in banco, rendered yesterday by Chief Justice Judd, on the Constitutionality of the Act approved November 26th, 1887, the intention of which was to reduce the number of the Supreme Court Justices from five to three. The concurring opinion of Justices McCully and Preston also appear. They declare the Act un constitutional and consequently null and void. Immediately after the decision had been rendered Justices Bickerton and Dole took their seats on the bench, and the Supreme Court is now consti tuted of five Justices. IMPORTANT DECISIuN. Constitutional Organization of the Supreme Court. Th Court in Bauco Declare the Justice' Act or November 2Stn, 18S7, Null and Told. The Deeisiou in Full. The January term of the Supreme Court opened at 10 :08 yesterday morn ing, Judd, C. J., McCully, J., and Pres ton, J., on the Bench. The King vs. F. J. Testa, libel. OPINION OF THE COURT. The question before us was reserved by Mr. Justice Bickerton as follows : "On the 3d of January, inst., an indict tuent was presented by the Attorney Gen eral against the defendant and was duly found a true bill by the Chief Justice. "Subsequently on the same morning I took my seat upon the Bench and called upon the Attorney General to present the indictment and take the defendant's plea. The Attorney General stated that under the circumstances he must decline to pre sent the indictment on the ground that by virtue of an Act of the Legislature passed at its special session, andj approved November 20, 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. 1886, 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 tutional and void, and 1 thereupon, under the powers conferred upon me by section 843 of the Civil Code and of all other pow enabling me, do hereby reserve the uetion,thatistosay: "Is the said Act of November 2(3, 1887, constitutional or mot? 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 28th December, 1886. 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 f to the Supreme Court are from 61 to 73 in" elusive. Article (J5 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 by 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 in terms or by implication, prescribes any other tenure of office would be contrary to the Constitution. Suppose, for example, the Act of 1886 had read that the additional J ustices 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 says: The principle asserted is that on Legislature in competent 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, 87-118. 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 the Supreme Court of Illinois held that 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 twentythird 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 theJUnited 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 Constitution that an office shall be held by 1 a particular tenure, it would be as much a usurpation in the Legislature to alter that tenre 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 5S5, 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 and 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 29th Judicial District by Act cfy 28th February, 1868, un der which Judge amble wa; eiected'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. Judi, Chief Justice Supreme Court. Attorney General Ashford for the Crown, Rosa and Hatch for defendant. Honolulu, January 4, 1888. OPINION 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 1886 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 persou 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 J ustices. 1 f 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 uts 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 tor 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 sociate 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 snail be ueiineu by the lav creating V.cm. 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 -stitution 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 Constitutiou shall take ef fect shall have, hold and exercise all the power to them granted," they 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 alter 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 J ustice. The Chief Justice then invited Mr. Jus tice Dole to take his seat upon the left of the third Associate Justice, which 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 tollow. The five Justices then proceeded to hear cases in banco. At a meeting of Company C of the Hono lula Rifles, held last evening, J. H. Fisher was re-elected Captain, H. C. Meyers re elected 1st Lieutenant, and J. M. Feireiru 2d Lieutenant. Sxtismtnti. Holiday Goods. Holiday Good .A.T COST PEICE. S AT TiHE Popular N. Millinery House, 104 Fort St., Honolulu, S. SACHS, PKOPBIETOJl Just receive , per steamer Australia, a fine selection of goods suitalle for Christinas gifts. Manicure Sets, in Amber 'and I Plush Jewel Cases, Plush and Leather Toilet Cases, Handkerchief and (Hove Boxes, Fancy Work Boxes, Fancv 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 riush Uollar and uuit isoxes VK Etc. account of These goods are of the newest designs, and of best quality, but on the late arrival we have decided to offer The Entire Holiday Stock at Cos, Besides the above, we will institute a SPECIAL BARGAIN SALE, commencing TO-DAY, for the holiday season only. Our Prices "Will Discount -A.11 Others. 1876. GEO W. LINCOLN. 1886 BUILD ER 75 and 77 Kin Street, " - Honolulu BI Telephone No. 275. 65 Mutual Telephone So. 63. JOHN "N" O T T, JStovcs, Banges and Housekeeping Goods. Plumbing, Tin, Copper and Sheet Iron Work 7 Mn QOLDBEKG, Campbell Block, Cor. Eort & Merchant Sts :o:- JUST RECEIVED, SUITABLE FOR XMAS PRESENTS, Gold and MlDff Silver Headed Japanese Silk Handkerchiefs, Japanese Handkerchief Holders. LATEST STYLES in NECKVEiP ELEGANT SILK PLUSH TOILET AND SHAVING CASES, And a fpll line Hi Custom Made Clothing. GENTS' FURNISHING GOODS, HATS lUSTD caps, etc. H. El Mclntyre & I'iro., I$PORTKRS AND DEALKRS IN Groceriesj, Provisions and Jfeed KAST' CORNER PORT AND KINO 8TRKKTS.' New Woods recelTed by Avwv naii tmm fact...n w.. i Jrenb . rruuuce uy every meamer. jAn oraers ittitDfully attended to, and Goods delivered to any f-,0 145 city free of charge. Islaodf orders solicited. Satisfaction mArAti Pntofflce Bo ni7 TulAnhnnu "KIVv d' I " DV-Jr-- i