The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-01-04

office under the Constitution, unless
removed by address or impeach-
ment. 23 III. 49S.
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 twen-
ty-thlrd 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 We. HIM
ter's Lessee q Wheaton 304), in
commenting upon Section /, Article
3 of the Constitution of the United
States, which reads as does the Ha-
waiian Constitution, 1.-The Judges
shall hold their offices during good
behavior and shall at stated times
receive for their services a compen-
sation which shall not be diminished
during their continuance in office" "
says, "Could Congress create or
limit any other tenure of the judi
cial office? Could they refuse to
pay, at stated times, the stipulated
salary, or diminish it during their
continuance in office? But one
answer can be given to these ques-
tions; it must be in the negative.
In People vs.. Burbank, II Cali
fornia 3iS, the Supreme Court of
that State say that eff the people
declare aud ordain in their Constitu-
tioh that an office shall be held by a
particular tenure. it would be as
much usurpation in the Legisla-
ture to alter that tenure as it would
be in the Governor to commission
for q longer period than directed by
the Legislature.
In an opinion rendered by the
Justices of the Supreme Court of
Massachusetts to the Governor in
B. Cushing $50, they say, eff
therefore the Legislature should,
though inadvertence, constitute a
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 Consti-
tuition"
In the State VS.. Jumel, 30 Loui
siana, An, Part II, SCI, it was
held "When Judge has acquired
his Office in the mode prescribed by
the Constitution, be has vested
right in its emoluments during the
term fixed by the Constitution for
it's duration, and his right cannot be
impaired by an act of the Legisla-
ture, passed during said term,
abolishing the office"
But it may be contended tlat
though the Act of 1887 under con-
sideration is imperative to remove
Mr.. Bickerton from his Office as a
Justice of the Supreme Court, it has
shorn him of his functions as a
Judge and his judicial power is
gone. But power, judicial author
ity and jurisdiction constitute the
office of Judge, and are of the es-
sence of it and inseparable from it,
and the Office cannot remain and the
functions be severed from it. If q
Judge at all he has all the powers of
a Judge.
Commonwealth VS.. Gamble 81
Pa. 343, reported in American Re-
ports 423, is strong authority on
this point. Here the Legislature
established the 29th judicial District
by Act of % Feb, 1868, under
which Judge Gamble was elected
and commissioned President Judge
of the district. BY an Act passed
March 16, 1869, the former Act was
repealed and the district abolished
Held that the Act of 1869 was IN
uulid, as being an attempt, substan'
TALLY to abolish the Office o.
the President Judge of the 29tl
district. Says the Court, the
term of the judicial Office il
fixed by the Constitution and it is
beyond the power of the Legislatar'
to diminish it. The power, author
ity and jurisdiction of an office are
inseparable from it. The Legisla
ture may diminish the aggregate
amount of duties of a Judge by {
division of his district, or otherwise
but must leave his authority an(
jurisdiction pertaining to the Office
intact"
The office of Justice of the Su.
preme Court is created by the Con
stitution as is also its tenure and its
amenability, and this excludes al
other modes, and it must follow
that any Legislation which infringe'
upon these is unconstitutional ant
invalid, and we therefore hold tina
the Act in question is unconstitu
tional and void, and Mr.. justice
Bckerton had that jurisdiction t,
} take the plea of the defendant.
A, i. JUDD,
Chief Justice Supreme Court
Attorney General Ashford for tn
crown; Rosa and Hatch for the de
, fendant.
Honolulu, Jan. 4, 1888.
MCCULLY, JUSTICE.
In stating my concurrence wit
the oniniOn of the Court as deliyore