The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-01-04
C0NSTlTUTIONALlTY OF the SU-
PREME COURT ACT, 1887.

1t is to be regretted that the ar
guments of counsel yesterday, be-
fore the Supreme Court in banco,
touching the constitutionality of the
Act approved November 26th, 1887,
purporting to reduce the number of
Supreme Court judges to three,
have not been reported in full. The
point at issue was one of the most
important that could well have
arisen, because the Attorney-Gen-
eral, in his opening statement,
while disclaiming that the Act was
a Government measure, admitted
that its policy and intent was TO in
troduce changes in the constitution
of the Supreme Court, its organiza-
ton at that time not being consi-
dered satisfactory to number of
members of the bar. In other
words, the Bill had been introduced
and promoted by certain members
of the bar to legislate the Third AS
sociate Justice off the bench, and
not for the sake of any contemplated
judicial reforms.
If this fact had been honestly
avowed while the Bill was under
discussion, public opinion might
have been heard upon its policy,
but the truth was carefully sup
pressed, and nothing might ever
have been known about it, except
to those in the secret, if it had not
been for the Attorney General 5
open and candid admission. If it
were not ministerial measure, it
certainly ought to have been one,
because no more serious question
could be submitted to any Legisla-
ture than one affecting the constitu-
ton and status of the Court of last
resort. AS matter of fact, very
bad effect has already been created
at home and abroad among
capitalists and the investing classes
generally, by the indiscreet tamper-
ing with the judiciary at the extra
session, apparently for political and
personal ends and not for reasons o1
public necessity or security.
The arguments on the whole were
able although somewhat technical
The Acknowledgement took the
ground that the Chief Justice anC
first and second associate justices
hold office under the Constitution
while the third associate justice, t.
whose presence on the bench excep
ton had been taken, had only sta
tutory appointment and could there
fore be removed by legislative enact
ment. The action of the Unitet
States Congress in 1902, in reducing
the judicial districts of the Fedora
Union from sixteen TO seven, wa
relied upon to show the superio
power of a Legislature. Although
Judge Story and other commenta
tors condemned this procedure a
unconstitutional, the fact remained
that no appeal against it was take
by the displaced judges. An ex
planation of this may probably b
found in the unsettled condition O
affairs in revolutionary times an
the bitterly hostile feelings the
prevailing, as well as in the charac
ter of the Administration of tina
day which rendered opposition to it
measures extremely dangerous.
1t was argued by Messrs. Ros
and Hatch that there was no differ
ence in the status of the judges
The law of 1886, which added tw
associate justices to the Suprem
bench, was constitutional. Com
missions in the usual form had bee
issued under that law, and the jus
tices holding those commission
could only be removed by impeach
ment. They held under the Con
stitution during good behavior, an
could not be legislated out of office
Numerous cases in point were cite
by counsel. Mr.. Hatch further con