The Hawaiian gazette., 1884-07-02
Hosolulu. NAY :OtA, lisa.

n "a, Ep- Fyv-ssr-s y n. L1v..a-f'.. A..--.S'y;
SIR:-on the 18th Nay, the Secretary Of the
legislative Assembly transmitted to the
Judges Of the Supreme Court, for their cpin-
ion thereon. copies Of two Resolutions, passed
by your bcdy. They are as follows
lst "WMEREAs. there are employed as Sec
rotary in the Foreign once and Board q
Health two Secretaries, Mr.. Webb and Mr..
Parker. who have ne taken the cath Of
allegiance. and who are drawing pay from |
the Public Treasury; Therefore be il
"RsSolrs,i that the Justices Of the Supreme |
Court he requested TO state their opinicn |
whether the appointment and the drawing Of |
pay by the ,wo persons named is in accordance |
with the laws as they BOW exist.
End ''RsSolrstf thar The Justices Of the So
preme Court be requested TO express their |
Opiuioa ca the following questioe;
as i, lawful for an Aliso, to whom letters |
patent Of druizAtio1 have been eonferTed.to be |
appointed to an oesee Of pros, or einOlunhent |
uuaer the Government Of this Kingdom, with |
cot taking ard subscribing the cath Of allegi- |
anee in manner and form prescribed by Sec |
toes $50 and 43l Of the Civil Code.
The question raised BY the mrs, Resolution |
is whether an alien can legally Oil the position
Of Secretary to the Minister Of Foreign Affairs |
or Of Secretary to the Board Of Health.
Under The statute Of ISIS aliens were not
eligible 10 any civil or military Ofsee IN this |
KiBsdOza. created by the laws. Vol l, Laws
Of Isle, ?. IS.
This Act was repealed on the passage Of the |
| Civil Code in lSS9 and, until 1875, aliens were
eligible to ofiee in this Kingdom except in the |
particular cases where the law limited the |
appointment 70 citizens, as for instance, Min |
| islsrs to the King. or Governors, who must BY |
Section 20 Of the Civil Code be either subjects
or denizeRS."
An Act was passed in 1874, (Chap. ~ Of
/ the Session Laws Of that year. entitled, "Au |
Act to provide for the taking Of the cath Of
allegiance by persons in the eaiploy Of the Ha- |
waiisn Government.
The preamble is as follows
WHEREAS, it is eHpedieni that all persons |
who may be appointed to places Of proht or
euioluueut under the Hawaiian Government |
should take the cath Of allegiance: Be 1t |
enacted by the King and the Legislative |
Assembly Of the Hawaiian Islands, IN the |
Legislature Of the Kingdom Assembled;
SECTION L From and after the passage |
! Of this Act every person who may be appointed |
to any ofice Ct pru6t OF emolunent under the |
Goveruuens Of this Kingdom shall, before Gu |
terins upon the duties Of his once, take and |
Subscribe the cath Of allegiance in manner and |
form prescribed BY Sections 40 aud i5l Of
'''T ~. - CSIe .,;,, ,,.,cr,b-s ,b,, on the
s,;lrrs m an ofSce holder 10 tale the oath |
-, -. -,.,b. ,F,sr ~. ,,..,,-r 81 hi.
80 .I.ii -, - a, ~. rs,;-,,s5 ri
his vfice shall become vacant.
49, .;,5vsrs - ~siI a sJ;.n. anJ tb;s NAV
-. - a. ,,,';';,, ,-h;rh ~. nm
s-rst.,5 +. s5t.rt,ispd by ,su,e. thAt the oath
Of allegiance here required, in an oath Of ONCE
So: go - ~. 1s;v;i Cd. ,,,,,,-;,.J The
;;s..- g r.,s-;o, ON ~ ,b - ,1rlir,t;sn of an
-. s.,;,,s- -, ~. s,;st.ss If ,sTt,in re-
',";s;,e. ;, 'i,,;r;,tsr tbs s,b Of alIsgi.ncs 10
-
- ia -. s,It,.-- 9Th. cath os
.ti.. :, ;. ,f,-..,;J sb,II
/ =, = s,Ii,,S..
The undersigned, native ot-.-..--.....;..
lstsly rsSadins -, :,. a., oe nj
sspp,rt he C5assitaticr and Laws Of tie Hawai-
ian Islands, and bear true allegiance TO His Ma
/ iesty ........-. .... =. .ths kiug'
>E0rn and saoseriosd ID ese-
! Section 1871 merely prescribes that the oath
shall be subscribed by the person 50 Raf,z7li-
/ f,s,i and sworn 10 in the form mott obligatory
upou his conscience and the iurat thereof is TO
/ be subscribed by the Minister Of Interior or
/ his Chief Clerk.
! The latter clause Of the next Section, 49,,
/ SAYS that every foreigner 50 R1uruli,eti shall
be entitled to ali the rights, privileges and i'm
| fnunities Of Hawaiian SUBJECT"
lii therefore evident that the above reciied
| oath cannot be considered as an oath Of Office,
but il i The oath Of allegiance. the taking Of
/ which uaruralires the alien and admits him to
4 Hawaiian citizenship.
! II is too clear to admit Of discussion that 4
/ uatiys-boru citizen is not required to take an
/ 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. 50 that il now reads: .iFrpm
aud after the passage Of this Act, -rsyy person
| II 6JrsiIH bird who may be appointed 10 any
| cfSce Of prp6t or euolument under the Govern
/ men, Of this KINGDOM. shall. before entering
upon the duties Of bis otsce. take and sub
scribe the oath Of allegiance in manner and
form prescribed BY Section $50 and 43I Of the
/ Civil Code This law i nov in force.
/ Il will be seen that the Act does not say
that 10 alien shall be oppoiatrsi to any otce ct
/ profit under the Government, or that alieus are
/ Ineligible 10 ctice, but it commands, as aeon-
I iitiog precedent 10 his entering upou the du-
ties Of any ofscs Of profit or ensolament under
the Government that he take the os,h Of ALE
/ -iancs which. a. We have seen above, means
\ tat he be uaturalizsd.
! Itis no, I, he presumed that 4 persou would !
/ be allowed to draw the pay Of an dice unless
/ he undertook to perform in duties.
/ We have no doubt that the law requires all |
/ persons Il foreign birth, in order 70 enable |
them to hold oifices Of profit OF emolument IN
/ der the Hawaiian Government, to be natural |
| lied, except in the instances hereinafter men
/ toned
It may be urged that the law i. not na4nda-
tory bat merely directory.
This Court has had occasion to consider |
/ 4 similar question on the application Of Nr.
I Ashford % be admitted TO practice law, a
Hav. Rep p. sI4.l The Law authorized the |
I Court to admit as practitioners, such persons,
..Jsi4J HTrirfi1a subjects. Of good moral char |
| actsr. as the Court nav ind qualified for that |
purpcse.1 We held that the law was inper- |
alive and mandatory to admit to practice noae
| bat Hawaiian subjects THE provisions Of |
I statute are to be regarded AZ directory merely 1
when thev are considered as giving directicus 4
which ought to be followed, but not Is limit
| ing the power IN respect 10 which the direc-
tious are given, 50 that thsy cannot be efectu- /
aIIv exercised wilhout Observing them
Cooley Court Limitations, D. IA
10 the case Of the People Va. Scheruerhoru,