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

holds his Office under the Constitution, un-
less removed by address or impeachment.
90 Ill. 4S8.
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 3 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 compensation which shall not be
diminished during their continuance III
Office" says, could Congress create or
limit any other tenure of the judicial Of
fice2 Could they refuse to pay at stated
times, the stipulated salary or diminish 1t
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 of that State say that
"If the people declare and ordain in their
Constitution that an office shall be held by
a 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 d.
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
of 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 IL, 861, 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 for its duration,
and his right cannot be impaired by an act
of the Legislature, passed during said
term, abolishing the office"
buL 1t Rady DC COuGcnuSu G1dC
Act of 1887 under consideration is inOper-
ative to remove Mr.. Bickerton from his
office as Justice of the Supreme Court, 1t
has shOrn him of his functions as 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 1T, and
the office cannot remain and the functions
be severed from it. If a judge at all he
has all the powers of Judge.
Commonwealth VS.. Gamble 90 Pa. 343,
reported in American Reports 423, is a
strong authority on this point. Here the
| Legislature established the 10Th Judicial
District by Act of 28th February, 1868, I'M
der which Judge Gamble was elected and
commissioned presiding Judge of the dis
| trict. By an Act passed March 16. 1869,
the former Act was repealed and the dis
trlct 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 Goth 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 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
Mr.. Justice Bickerton had that jurisdiction
to take the plea of the defendant.
A F. JUDI,
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 a
| Chief Justice and four Associate Justices.
Article 65 of the Constitution in prescrib-
| ing that the Supreme Court shall consist
| of a 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
Justices, and such additional Justices have
been commissioned, they become Justices
| of the Supreme Court. How then can it
| be considered that the Constitution does
| not apply to them? By Article IS Justices
I l. II. - hoh