The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-01-04

we presume 1t would he competent
for the Legislature in a contingency
of there being but a Chief Justice
and two Associate Justices in COM
mission, to enact that no further APP
pointments should be made and that
they should constitute the Supreme
Court. The fact that there was
Third Associate Justice in commits
sion, Mr.. Justice 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
Fourth Associate Justice, Mr.. S. B.
Dole, was appointed.
The Articles of the Constitution
relating'to the Supreme Court are
from GA to ~ inclusive. Article 65
of the Constitution prescribes that
the Justices shall hold their offices
during good behavior, subject to
removal upon impeachment and
by the Legislature, for cause,
as fully set forth in the said
Article. This Article defines the
tenure of Office of Justice of the
Supreme Court. 1t is not limited
to those who happen to be in Office
when the Constitution was promul-
gated. The Fundamental law creates
the tenure, and prescribes that who
ever shall be appointed to this Office
thereafter shall hold during good be-
havior.
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 Justice of the SUI
preme Court is created by the Con-
stitution, which vests the Judicial
Power of the Kingdom in this one
Supreme Court. The Constitution
has placed this Court beyond the
control 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 prescribe the
tenure of Office of the judges of
these courts. BY the Goth Article
the Judicial Power can he distri-
buted by the Legislature among the
Supreme Court and the inferior
courts, but this does not create
the office of Justice of the Su-
preme Court, or define the tenure
by which it is to be held, nor does
any article of the Constitution grant
such power to the Legislature.
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 con-
trary to the Constitution. Suppose,
for example, the Act of 1886 had
read that the additional Justices
should hold office only so long as
the Act remained unrepealed. 1t
would be apparent that this would
make the tenure of their office at the
will of the Legislature, whereas, the
Constitution says, they shall hold
office during good behavior.
But statute of this nature would
be in effect what is claimed for the
Act of 1887, under consideration, for
it undertakes by repeating the law
which authorizes his appointment
to remove Justice of the Supreme
Court. This cannot be done, for ii
is not one of the methods of re-
moval prescribed by the Constitu-
ton.
1t is claimed that one Legislature
cannot bind succeeding one, and
that since the Legislature of 1886
enacted the law providing for two
additional Justices, the Legislature
of 1887 can repeal this law.
On this question Chief Justice
Marshal, Of the Supreme Court OF
the United States says: The princi
pie asserted is that one Legislature
is competent to repeal any Act
which former Legislature was com
petent TO pass, and that one Legis
lature cannot abridge the powers o.
a succeeding Legislature. The cor.
rectness of this principle, so far a:
respects general legislation, car
never be controved. But if an Ac
+ be done under law, Il succeeding
I legislature cannot undo it. The pas
cannot be recalled by the most abso
z lutte power. N When, then {
> law is in its nature n contract, when
absolute rights have vested undel
, that contract, repeal of the law
cannot divest these rights"
Fletcher V. Peck 6 Cranch 7-148
e But without deciding whether tn
; acceptance of an Office with de
finite term amounts to contract, i
is sufficient to say that the organi
law of this Kingdom does not confe
upon the Legislature the power t.
! legislate upon the tenure of office of
a Judge of the Supreme Court. Iii
not subject within its jurisdiction
7 and the Legislature is not competen
, to pass any law abridging it. TIL
exercise of such power would b
ultra VireS.
I At this late day no one can sc