The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-05-07
Honolulu. April 25th. 1881.
Opinion of JLr. Justice Judd.

Honolulu, April 25th. 1881.
Opinion of Mr.. Justice Judd.
While fully agreeing with the conclusions ar
rived ut by the learned Chief Justice in this case,
l deem 1t proper to add this statement of my
views. 1t is a well established principle conced-
ed by all lurists. that every Independent state,
has, as an attribute of sovereignty, the right to
altogether prohibit the entrance into its territory
of strangers. Therefore treaties generally con-
tain provisions conceding TO the citizens of each
contracting power, the right to enter and reside
In the territory of the other.
The fact that motives of policy have generally
dictated that this right be not exercised, does not
initiate against the existence of the right.
A fortlorl, then. the state has a right to impose
such terms and conditions, precedent to the
entry of foreigners within its borders, as III its
opinion, are essential to its welfare, peace and
good government.
l see no reason why Il sovereign state may not
prescribe these terms even in the absence of
municipal law declaring what they shall be. The
State may say to those who seek TO become resi-
dents within its territory. We will admit you,
providing you accede TO these terms which we
deem to be reasonable and necessary In the
absence of law the State could not enforce these
slpulations through its Courts, but if 1t possessed
sufficient material strength, the naked right of the
State To use the same to prevent the unauthor1Z-
ed and unwelcome entrance of foreigners Is I'M
doubted.
The right of States as affecting the citizens of
other States does not depend upon its own NUM-
clpal law the law only indicates and expresses
the way IN which these rights are to be exercised.
The Ordinance in the case before us does not
create the right of this Kingdom to regulate and
control immigration.
The first question is whether this Ordinance
possesses legal validity, if it does, then the power
to restrain the petitioners from coming in among
us rs residents, until its provisions are complied
with, must be sustained by the Court.
The objection Is made that this Ordinance Is
mot 1nn1a I- fha Low ,,olnpn QUE nf this k1n0-
dom, which by the Constitution is vested III the
Legislature, and that the Legislature cannot
delegate this power to the Privy Council.
l do not see how the Acts of 1864 ana 1868
mpowerin His Majesty in Privy Council, on
the recommendation of the Board OF Immigra-
ton to make rules and regulations for the good
government and control of immigrants, can be
construed to be "a delegation of Legislative
authority, any more than the Acts empowering the
Board Of Health To make regulations respecting
nuisance. interlnents of the dead and quarantine,
or the Acts which authorize the Board OF Educa-
ton TO adopt rules for the internal regulation
and government OF public schools, are delega-
tons of the law making power.
As regards the Board of Health, considering
the variable nature of the circumstances affecting
the public health from time to time, there must
be lodged somewhere the authority 20 make
regulations or ordinances suited to the special
eXigency as it arises, and to repeal them when
the occasion no longer exists. The varying and
often transitory nature of the difficulties to be
met with in regard to immigration call with equal
force for the creation OF an authority to make
such regulations as from time to time the neceS-
sites of the case require, and to repeal or modify
the same as further developments may seem to
demand.
If the contrary opinion should hold, the
Government would be obliged to await the meet
ing of the Legislature, which is convened only
biennially, before Il regulation could be made to
meet circumstances easily conceived Of, of "A
most pressing character, often, to the health, or
the safety, of the citizens of this Kingdom:
Such regulations made by the various Boards
and Departments of this Government III pur-
suance of law. must not be inconsistent with any
existing law or unreasonable or unjust.
But 1t is further objected that the Ordinance
in question is not authorized by the terms OF the
law, and particularly because the petitioners are
not of the class or description of immigrants Tor
the good government and control of which the
Act of 1868 authorized Ordinances to be made.
1t must be borne in mind that the Act of 1864
already conferred the power on the Prlvy Council
to = adopt such measures and regulations as may
be deemed eXpedient to promote and encourage
the introduction of free (that is, unindentured)
immigrants from abroad, a" and the Act of 1868
extended these powers by making 1t the duty OF
the designated authority - to adopt such rules
and regulations as may be deemed necessary for
the good government and control of immigrants
that have been brought or admitted or that may
be brought or admitted into this Kingdom, as
servants or laborers, under license or permission
from the Bureau of Immigration, or contract
with the Minister of the Interior These petl-
TONERS answer the description so far as they are
immigrants brought or admitted here as ser
wants or laborers.' They do not come = under
contract with the Minister OF the Interior, and
it is said that they are not admitted under
" license or permission from the Bureau OF I'M
migration, - and, therefore, the authority to
make regulations for their good government ana
control does not exist. 1t Is true that at the
time when these laws were enacted, immigration
from foreign countries was quite limited ana II
mainly consisted of those who came under con-
tracts or indentures made in their own country
either with the Minister of Interior or with pm
vate individuals, but as the Act of 1874 gave the
general superintendent of the importation OF
foreign laborers and the introduction OF lmml-
grants to the Bureau of immigration, ana
authorized the Board to adopt measures ana
regulations for the Encouragement OF free lmml-
grafton, I think it Is II fair inference to draw
that all immigrants coming hlther rs servants or
laborers- come under the license or permission
either express or implied OF this Board. Tn
fact that Of late no express licenses or permission
have been required to be taken ont for the adj
mission of immigrants does not prevent the
Board OF immigration from now prescribing
through this Ordinance, upon what conditions
their admission to this country may be permitted.
The Ordinance is not repugnant to fundament-
al right, nor IS il inconsistent with any Law OF
tins Kingdom, and it is in my opinion, reason
able and easy TO be complied with by all who 1t
Is likely will be Il desirable class of resident for
this country.
Honolulu, April %, 1881.
Opinion Of Jr. Justice McCuAy.
Without writing an opinion ut length, argu-
m~entauvely and with reference to authorities,
IN view OF the full opinions filed by the
Chlef Justice and the First Associate, with which
I agree, / hold
/. That IS clearly Of the sovereign right of a
State TO bar admission TO its territory of the
citizens OF othe states II whon l. has no treaty