The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1876-01-08
a CONSTITUTIONAL QUESTION.

At the opening of the January Term of the
Supreme Court last Monday, Mr.. Preston pre-
sented an indictment for manslaughter against
Charles W. Kanaau, signed "John S. Walker,
Attorney General of the Kingdom, by his Depu-
ty, Edward Preston" Mr.. Hartwell, the de-.
fendant's counsel, moved to quash the indictment,
on the ground that John S. Walker, whose
name was signed as Attorney General, is the
Minister of Finance that there is no Attorney
General, but that the said John S. Walker is ap-
pointed, commissioned and gazetted as Attorney
General adj interim, and that the Indictment was
not presented by an Attorney General of the
Kingdom or his Deputy duly appointed accord
ing to the laws and constitution of the realm.
The motion was made before Mr.. Justice Judd,
who reserved the point for the Court in banco
(Justices Harris and Judd) which came in on
Tuesday morning. Mr.. Hartwell's argument was,
in substance, as follows:
An indictment not presented by q duly appointed Attorney
General or his duly appointed Deputy is bad, and therefore
the legality Of the appointment is fairly raised. With ali due
respect to the members Of His Majesty's Cabinet, who are re-
sponsible for this departure from the requirements OF the law,
III there is any-the duty of counsel in so grave q charge
requires every proper argument 70 be presented. The impor-
lance of this question may easily be magnifed, when it is
considered with what case the office can be filled Gointing to
the counsel for the Crown, Mr.. Preston) in such manner that
no doubt can be raised. 1t being we'll known that a perma-
nent appointee is expected from the United States. and that
the tenure of office is at His Maesty's pleasure, there was no
occasion TO avoid a regular appointment, or to appoint the
Minister of Finance as Attorney General. But the importance
of the question cannot be magnifed, when iii ) considered that
the means are thus given Of destroying the spirit AMI evading
the letter Of the Constitution, by which form responsible Min
listers are required, each 10 have his office al the seat OF gov
eminent. In the case Of the King VS.. Akina, at the April
Term of 1865, the Minister of Finance, Mr.. Harris, was Act
ing Attorney General, and similar objection made by counsel
Nlessrs. Jones, Judd and Stanley was overruled. But that
case was brought when there was no statute certainly in force
defining the nature of the office of Attorney General and his
Deputy, as is done by the Act of August, 1866. The country
was then new 10 the Constitution of 1864. What law there
was on the subject IF regarded as not repealed by the Consti-
tution) required the Attorney General to know the Hawaiian
Language and the Court said tina, they decided as they did,
because Of some pressing necessity to save the government
functions from being stopped. There is no such necessity now.
Moreover, Judge Robertson, in giving his opinion, said that
the appointment of 4 Minister of Finance to be full Attorney
General was clearly contrary to the spirit of the Constitution,
and Judge Davis said the same of an acting appointment.
Hoe they could come to such a result from such premises, is
hard to understand. No stronger arguments can be stated for
granting this motion than in the very words Of these judges.
An acting appointment is not the same as an appointment al
interim. An Gd interim appointment is not a regular ap-
pointment, or one known to the law. The Court in the Akua
case expressly say, that the acting appointment vas limited TO
appearing in Court. This indictment is signed by MIR. Walker
as full Attorney General, and there is no ground for saying
that his powers are limited. lie can draw the appropriations
for the Department and has full power over prosecutions and
all matters appertaining TO the Office but be would have to
draw on himself and account to himself-a position never
meant by the law. If the charter Of a private corporation
required a President, Secretary, Treasurer and Auditor, would
any business man trust 81 one or two persons held all those
Offices!
A further difficulty is, that to permit this course il one in
stance would require it TO be permitted in others. II the same
msn can hold two Cabinet Offices, why not Is well hold four
Or why not have all al ittsrim Ministers, and so avoid per-
manent responsibility By naming an Attorney General al
interim, it cannot be meant to give TO the public the gratuitous
information that the Office is subject TO His Majesty's will.
Such an appointment means something more, and usually i'm
plies that there is a permanent incumbent whose functions are
temporarily suspended, or who Is Tor q time unable 10 perform
them.
If Cabinet Offices can thus be absorbed temporarily they
can be absorbed permanently. How many votes in the Legis-
lature would be cast or lost by one holding several Cabinet
Offices, What inteligible object or sound reason can he dis
cerned for snch an appointment as this
When the Constitution say. there shall be a Chief Justice
and not less than two Associate Justices Of the supreme
Court, what would be ghought of making the First Associate
a Chief Justice al Interim
If the law requires the Deputy Attorney General TO be APP
pointed by the Attorney General, his appointment by any one
else is invalid.
The country looks TO this Court TO secure its rights. The
worthy incumbenis Of the Cabinet Offices 'Qll themselves