The Hawaiian gazette., 1888-01-10
AN IMPORTANT DECISION.
Tenure of Office of Supreme Court
Judges

The decision of the three Justices OF
the Supreme Court referred to in the
report Of the proceedings of the Court
in another column, has been looked
for with considerable interest in the
community.
After reciting the facts of the case,
the Chief Justice proceeds to dispose
of it as follows:
The Constitution, Article IS, pro-
vides that the Supreme Court shall
consist of Chief Justice and not less
than two Associate Justices 1t is
within the power of the Legislature to
increase the number of Associate JUS
tees by statute.
1t is likewise within its power by
statute to reduce again the number
to not less than two Associate Jus
tees, unless some appointment made
under the statute authorizing the
appointment of more than two Assoc
ciates shall have prevented this We
presume it would be competent for the
Legislature in a contingency of there
being but a Chief Justice and two As
sociate Justices in commission, to
enact that no further appointments
should be made, and that they should
constitute the Supreme Court. The
fact that there was a Third Associate
Justice in commission, 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 a
Fourth Associate Justice, Mr.. 5. B.
Dole was appointed.
The Articles of the Constitution re-
lating to the Supreme Court are from
81 to Y inclusive. Article IS of the
Constitution prescribes that the JUS
tees shall hold their offices during
good behavior, subject to removal
upon Impeachment and by the Legis-
lature, for cause, as fully set forth in
the said Article This Article defines
the tenure of Office of a Justice of the
Supreme Court. 1t is not limited to
those who happen to be in office when
the Constitution was promulgated.
The fundamental law creates the
tenure, and prescribes that whoever
shall be appointed to this office there
after shall hold during good behavior.
To claim that the Chief Justice and
two of the Associate Justices shall hold
office by this tenure, and that addi-
tional Justices hold subject to the will
of the Legislature, would be in effect
to admit that they We're not Justices
of the Supreme Court.
The office of Justice of the Su-
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 infe-
rior 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 be dis
tributed by the Legislature among the
supreme Court and the inferior courts,
but this does not create the Office of a
Justice Of the Supreme Court, or de-
fine the tenure by which it is to be
held, nor does any article of the Con-
stitution grant such power to the Leg
islature.
A Justice of the Supreme Court,
when appointed, holds his Office in
accordance with Article IS of the Con-
stitution, that is, during good be-
havior A statute, which in terms OF
by implication prescribes any other
tenure of office, would be contrary to
the Constitution. Suppose, for exam
pie, the Act of 1856 had read that the
additional Justices should hold office
only so long as the Act remained mre-
pealed. 1t would be apparent that
this would make the tenure of thelI
office at the will of the Legislature,
whereas, the Constitution says, they
shall hold office during good be-
havior
But a 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
a Justice of the Supreme Court. This
cannot be done, for it is not one of the
methods of removal prescribed by the
Constitution.
1t is claimed that one Legislature
cannot bind a succeeding one, and
that since the Legislature of 1886 en-
acted the law providing for two addi-
tional Justices, the Legislature of 1881
can repeal this law.
A formidable array of authorities Is
here cited, after which his Honor pro-
ceeds:
But it may be contended that though
imperative to remove Mr.. BickertoT
from his office as Justice of the SUI
preme Court, it has shorn him of hi:
functions as Judge and his Judicial
power is gone. But power, judicial
authority and jurisdiction constitute
the office of a Judge, and are of Tho
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 tie powers of ;
Judge.
Commonwealth vs.. Gamble, 60 Pa.
S43, is here cited
The office of Justice of the Supreme
Court is created by the Constitution,
as is also its tenure and its amenabil.
ity, and this excludes all other modes,
and it must follow that any legislation
which infringes upon these is uncon
stitutional and invalid, and we there
fore hold that the Act in question j:
ar,d void and Mr.