The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-01-05

When the statutes enact that there shall
be more than three, it is necessary for the
legal constitution of the Court that the re-
ouired number shall be commissioned. 1t
is not essential that the whole number
shall sit in every case or many case. The de-
cisions of a majority of the Justices are
final and conclusive, Article SO.
Bv Article 10 no person shall sit as a
Judge in any case in which he or his rela-
tive may have any pecuRiary interest.
Sickness or temporary absence from the
Kingdom may likewise prevent the sitting
of all the Justices. If majority sit and a
majority agree in the decision of the case,
there is a valid decision of legal Court.
Yet the Court requires for Its legal status
the whole number of Justices to be IN COM
mission. Being in commission the doc
trine of vested rights applies. Absolute
rights have vested in the holder of the APP
pointment for life or good behavior, subject
to removal only by prescribed methods
for improbable cause or for other cause
which two-thirds of the Legislature shall
find sufficient and the King satisfactory
Article IS.
Insanity or physical disability to per-
form duty may be instanced as grounds tor
the latter procedure.
1t is not conceivable that the office can
be abolished without a violation of the
vested rights Of Justice so ousted.
The supposable continuance OF his salary
does not satisfy his rights. He has right
to the powers and honor of the office for
the term for which he was elected OR APP
pointed.
We are brought by every course of reas-
oning to the same result, namely that the
appointments under the Act of 1886 are
brought under the provisions of the Con-
'stitutiOn - that they cannot be dis
tinguished from the appointments which
the Constitution prescribes shall as a mini
mum be made.
a conclusion to the contrary would be in
conflict with all the authorities and unsup-
ported by valid reasoning.
L. McCULLY.
OPINION OF SECOND ASSOCIATE JUSTICE.
1 concur in the opinion delivered by the
Chief Justice, and in the declaration that
the Act in question is unconstitutional and
therefore void, and have but little to add.
1t was argued by the Attorney General
that as the offices of third and fourth As
seciate Justices were created by an Act of
the Legislature, therefore the offices might
be abolished by another Legislature repeal
ing such law, and he also cOntended that
such offices were held by virtue of such
law only. But he conceded that if the of
fees were held by virtue of the law and
under the Constitution, the law in question
would be unconstitutional.
Article IS of the Constitution of Kane
hameha V provides that the Supreme
Court shall consist of Chief Justice and
not less than two Associate Justices, and
that the Justices shall hold their offices
during good behavior subject to removal
by impeachment, etc.
Article sc provides that the tenure of Of
flee in the inferior Courts shall be such as
shall be defined by the law Creating S.Acrl..
The Legislature by the law of 1886, hav-
ing full authority to do SO, enacted that
the Supreme Court should consist of a
Chief Justice and four Associate Justices.
Mr.. Justice Bickerton was appointed
Third Associate Justice under this Act on
the 28th December, 1886, and thereupon
became Justice of the Supreme Court,
the only Court established by the Consti-
tuition, and consequently held his Office
under the section IS, and subject only to
removal in terms of such section.
This Kingdom had obtained by the Con-
stitution of Kamehameha III, and that of
Kamehameha " a tenure of office for the
Justices of the Supreme Court free and in
dependent from the control of the Crown
and the Legislature, position which had
only been obtained III some other countries
after years of agitation and struggling
with the Crown, and it would be in my
opinion. blow to the independence and
integrity of the Justices of this Court, if it
could be considered an open question as to
the power of the Legislature to interfere
with or in any way alter the tenure of their
offices.
The new Constitution in Article 65 adopts
the then existing law, and by Article 81
declares that Cali officers of this Kingdom
at the time this Constitution shall take eff
feet shall have, hold and exercise all the
power to them granted" they being re-
quired to take an oath to support the Con-
stltution within sixty days from its pro-
mitigation.
1t therefore seems to me that the position
of Mr. Justice Bickerton was recognized
by the Constitution.
L cannot. in conclusion, say more than
that great and learned Judge, Chief Justice
Marshall, in the case of Marbury VS. Mad
ison, The Constitution is either superior
paramount law, Interchangeable by ordinary
ia louo with
Legislative acts, and like other acts, is aESer-
able when the Legislature shall please to
alter it.
eff the former part of the alternative be
true, then legislative act contrary to the
Constitution is not law; if the latter part
be true, then written constitutions are alb