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

-
creating new circuits of the territory from
| which he was elected. Once elected he
holds his Office under the Constitution, un-
less removed by address or impeachment.
| % Ill. 498.
The same Court in the People ex rel.
Ballou VS. Bangs, "a Ill. 1874, reiterated this
principle and said of Circuit Judge whose
appointment was under the Constitution:
But there is Judge still remaining in
Office upon whom the burden of performing
circuit duties in the twenty-third circuit
still devolves, and whom the Legislature
have not and could not deprive of his
office by the passage of any law"
Judge Story in Martin VS.. Hunters Les
see q Wheaton 304), in commenting upon
Section l, Article of the Constitution of
the. UNITED States, which reads as does the
Hawaiian Constitution, "The Judges shall
hold their Offices during good behavior and
shall at stated times receive for their serv-
ices a compensation which shall not be
diminished during their continuance III
Office" says, Gould Congress create Or
limit any other tenure of the judicial Of
flee? Could they refuse to pay at stated
during their continuance in office? But
one answer can be given to these
questions: 1t must be in the negative"
In People VS.. Burbank, II California 378,
the Supreme Court or that State say that
eff the people declare and ordain in their
Constitution that an office shall be held by
particular tenure, it would be as much
usurpatiOn in the Legislature to alter that
tenure as it would be in the Governor to
commission for longer period than di-
rected by the Legislature"
In an opinion rendered by the Justices
of the Supreme Court of Massachusetts,
to the Governor in B.Cushing 595, they say
eff therefore the Legislature should
through inadvertence, constitute judicial
office, and prescribe any other tenure than
that prescribed by the Constitution, such
provision in the statute must yield to the
paramount authority of the Constitution"
In the State VS.. Jumel, 80 Louisiana, An,
Part II, $751; it was held when Judge
has acquired his office in the mode pre-
scribed by the Constitution he has vested
right in it's emoluments during the term
fixed by the Constitution fer its duration,
and his right cannot be impaired by an act
of the Legislature, passed during said
term, abolishing the office"
But it May be contended that though the
Act of 1887 under consideration is inOper-
alive to remove Mr.. Bckerton from his
Office as a Justice of the Supreme Court, it
has shOrn him of his functions a Judge
and his judicial power is gone. But power,
judicial authority and jurisdiction consti-
tute the office of a Judge, and are of the
essence of it and inseparable from it, and
the office cannot remain and the functions
be severed from it, If judge at all he
has all the powers of Judge.
Commonwealth VS.. Gamble so Pa. 343,
reported in American Reports 423, is a
strong authority on this point Here the
Legislature established the Goth Judicial
der which Judge Gamble was eiected'and
commissioned presiding Judge of the dis
trict. By an Act passed March 16 1869,
the former Act was repealed and the dis
tr1ct abolished. Held, that the Act of 1869
was invalid, as being an attempt, substan-
TALLY to abolish the office of the presiding
Judge of the 29th District. Says the Court,
the term of the judicial office is fixed by
the Constitution and it is beyond the
power of the Legislature to diminish it.
The power, authority and jurisdiction of
an Office are inseparable from it. The
Legislature may diminish the aggregate
amount of duties of a Judge by division
of his district or otherwise, but must leave
his authority and Jurisdiction pertaining
to the Office, intact"
The Office of a Justice of the Supreme
Court is created by the Constitution as is
also it's tenure and it's amenability, and
this excludes all other modes, and it must
follow that any legislation which infringes
upon these is unconstitutional and invalid,
and we therefore hold that the Act in
question is unconstitutional and void and
MIR. Justice Bickerton had that jurisdiction
to take the plea of the defendant.
A. F. JUDD,
Chief Justice Supreme Court.
Attorney General Ashford for the Crown,
Rosa and Hatch for defendant.
Honolulu, January 4, 1888.
OPINION OF FIRST ASSOCIATE JUSTICE
In stating my concurrence with the
opinion of the Court as delivered by the
Chief Justice, it is not necessary to go over
the whole ground, as it has been discussed,
or to re-state the authorities quoted, or
quote further authorities in support of the
result we have arrived at. This is not a
case in which there is any conflict of au-
thorities.
The Act of 1886 required that to consti-
tute the Supreme Court there should be
Chief Justice and four Associate Justices.
rticle 65 of the Constitution in Drescrih-
ing that the Supreme Court shall consist
of 2 Chief Justice and not less than two
Associate Justices, plainly provides for the
creation of more than two Associate JUS
tees by statute. But when statute is en-
acted requiring more than two Associate
Iusticas and such additional Justices have