The Hawaiian gazette., 1884-07-02
Honolulu, May 10th, 1854

| $500
To the Hon. President Of ne Legislature Assembly:
Simon the 18th May, the Secretary of the
Legislative Assembly transmitted 10 the
Judges of the Supreme Court, for their opin-
ion thereon, copies of two Resolutions, passed
by your body. They are as follows:
| lst "WHEREAs, there are employed as Sec
rotary in the Foreign Office and Board of
Health two Secretaries, Mr.. Webb and Mr..
Parker, who have noe taken the oath of
allegiance. and who are drawing pay from
the Public Treasury; Therefore be it
"ReSolred that the Justices Of the Supreme
Court be requested TO state their opinion
whether the appointment and the drawing Of
pay by the two persons named is in accordance
with the laws as they now exist"
End. "Resoirei that the Justices Of the Su-
preme Court be requested 10 express their
opinion on the following question:
"Is it lawful for an alien, to whom letters
patent of denization have been conferred,t to be
appointed TO an Office of profit or emolument
under the Government Of this Kingdom, with
out taking and subscribing the oath of allegi-
ance in manner and form prescribed by Sec
tons $50 and 43l of the Civil Code!"
The question raised by the first Resolution
is whether an alien can legally fill the position
of Secretary to the Minister Of Foreign Affairs
or of Secretary to the Board of Health.
Under the statute Of 1876 aliens were not
eligible 10 any civil or military Office IN this
Kingdom, created by the laws. Vol. l, Laws
of 1916, p. &c.
This Act was repealed on the passage of the
Civil Code in 1859 and, until 1875, aliens were
eligible to Office in this Kingdom except in the
particular cases where the law limited the
appointment to citizens, as for instance, Min
listers 10 the King, or Governors, who must by
Section 80 of the Civil Code be either "subiects
or denizens."
An Act was passed in 1874, (Chap. ~ Of
the Session Laws of that year. entitled, Gan
Act TO provide for the taking of the oath of
allegiance by persons in the employ of the Ha-
waiian Government"
The preamble is as follows:
WHEREAS, it is expedient that all persons
who may be appointed to places of profit or
emolument under the Hawaiian Government
should take the oath of allegiance: Be it
enacted by the King and the Legislative
Assembly Of the Hawaiian Islands, in the
Legislature Of the Kingdom Assembled;
SECTION 1. From and after the passage
of this Act every person who may be appointed
TO any Office of profit or emolument under the
Government of this Kingdom shall, before en-
tering upon the duties of his Office, take and
subscribe the oath of allegiance in manner and
form prescribed by Sections 1870 aud 43l Of
the Civil Code"
The second Section prescribes that on the
failure of an office holder to take the oath
within three months after the passage of this
Act lie shall be deemed to have resigned and
his office shall become vacant.
This Act applied to all Office holders, native
born citizens we'll as aliens, and this may
have given rise to the opinion, which we IN
derstand is entertained by some, that the oath
OF allegiance here required, in an oath of Office
and not of naturalization.
Section 429 of the Civil Code authorized the
Minister of Interior, on the application of an
alien foreigner on the existence of certain re-
quisites to administer the oath Of allegiance TO
him.
Section 43Oreads as follows: 1.-THE oath of
allegiance to be administered as aforesaid shall
be as follows:
The undersigned, native of..................
duly sworn upon his oath, declares that he will
support the Constitution and Laws of the Hawai-
ian Islands, and bear true allegiance to His Ma
jesty. .......................th the King
Sworn and subscribed to, ETC.
Section I31 merely prescribes that the oath
shall be subscribed By the person so natural
ICED, and sworn to in the form most obligatory
upon his conscience and the jurat thereof is to
be subscribed by the Minister of Interior or
his Chief Clerk.
The latter clause Of the next Section, 1872,
says that every foreigner 30 ndturdiized shall
be entitled to all the rights, privileges and i'm
munities of Hawaiian subject"
1t is therefore evident that the above recited
oath cannot be considered as an oath of Office,
but it is the oath of allegiance. the taking Of
which naturalizes the alien and admits him to
Hawaiian citizenship.
It is too clear to admit of discussion that a
. I
oath of allegiance. The Legislature Of 1876
by Chap. VIII Of the Acts of that year, prob
ably to cure the defect in the Act of 1874,
amended the law, no that it now reads: "From
and after the passage Of this Act, sUeTy person
Of Foreign birth who may be appointed to any
Office OF profit or emolument under the Govern
ment OF this Kingdom, shall, before entering
upon the duties of his Office, take and sub
scribe the oath of allegiance in manner and
form prescribed by Section 400 and 43l of the
Civil Code" This law is now in force.
1t will be seen that the Act does not saw
that no allen shall be appointed to any Office OF
proht under the Government, or that aliens are
ineligible TO Office, but it commands, as aeon
dltion precedent to his entering upon the du-
ties OF any Office of profit or emolument under
the Government that he take the oath of allie
glance which, as we have seen above, means
that lie be naturalzed.
1t is not to be presumed that person would
be allowed to draw the pay of an Office unless
he undertook to perform its duties.
We have no doubt that the law requires all
persons of foreign birth, in order to enable
them to hold Offices of profit or emolument un
der the Hawaiian Government, to be natural
lied, except in the instances hereinafter men,
toned.
1t may be urged that the law is not manda-
tory but merely directory.
This Court has had occasion to consider
a similar question on the application of Mr..
Ashford to be admitted to practice law. CA
Haw. Rep p. CAD The law authorized the
Court to admit as practitioners, such persons,
beng HdtrdiidR subjects, of good moral char
acter, as the Court may find qualified for that
purpose" We held that the law was imper-
alive and mandatory to admit to practice none
but Hawaiian subjects. "The provisions of
statute are to be regarded as directory merely
when they are considered as giving directions
which ought to be followed, but not as limit
ing the power in respect TO which the direc-
tons are given, so that they cannot be effectu-
ally exercised without observing them"
Cooley Court Limitations, p. "a.
In the case of the People W.. Schermerhorn,
10 Barb, SIS, it was held that statutory re-
QUESTIONS are deemed directory only when they
relate to some immaterial matter, where COM
pliance is matter of convenience rather than
of substance"
To illustrate what directory statute is: at
has been held that where q statute specifies
the time within which a public officer is to
perform an act regarding the rights and duties
of others, it will be considered as directory
merely, unless the nature of the act to be per-
formed, or the language of the statute shows
that the designation of tue time was intended
as limitation Of power" People vs.. Allen,
269. 0'''"
Lord Mans6eld's rule is that whether the
statute is mandatory or not, depended upon
whether the thing directed to be done was the
essence of the thing required. Burrows, AT.
The law now under discussion plainly re-
quires, in our opinion, that the appointee to
an office of profit under this Government shall
not be an alien.
Whether any given employment under Gov
eminent is or is not an Office of profit or
emolument," would depend upon circum-
stances. The Office of Secretary of the Board
Of Health is created by law. See Chapter
XI Of the Laws of 1876, where the Board of
Health SIS authorized to employ Secretary,
medical practitioners and agents, who shall