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

January 3, 1888.
Mr.. Justice Bickerton was appointed and
commissioned as Third Associate Justice
of the Supreme Court on 28th December,
1886. The Act of 26th November, 1887 re-
peals in terms the Act of 1886, in pursuance
of which Justice Bickerton was appointed,
and re-enacts certain stututes which by
that Act were repealed-the intention of
the Act of 1887 being to repeal the existing
provisions of law that the Supreme Court
shall consist of a Chief Justice and four
Associate Justices, and to provide that it
shall consist of a Chief Justice and two
Associates.
The Constitution, Article IS, provides
that the Supreme Court shall consist of a
Chief Justice and not less than two Asso-
ciate Justices. 1t is within the power of.
the Legislature to increase the number OF
Associate Justices by statute.
1t is likewise within its power by statute
to reduce again the number to not less
than two Associate Justices, unless some
appointment made under the statute au-
thorizing the appointment of more than
two Associates shall have prevented this.
We presume it would be competent for the
Legislature i'll contingency of their being
but Chief Justice and two Associate JUS
tice+ in commission, to enact that no fur
Their appointments should be made and
that they should constitute the Supreme
Court The fact that there was a Third
Associate Justice IN commission, Mr.. JUS
tice 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 Fourth
Associate Justice. Mr.. S. B. Dole. was APP
pointed.
The Articles of the Constitution relating
to the Supreme Court are from "a to 70 in
elusive. Article 65 of the Constitution pre-
scribes that the Justices shall hold their Of
fees during good behavior, subject to re-
mOval upon impeachment and by the Leg
stature, for cause, as fully set forth in the
said article. This Article defines the ten
ure of office of Justice of the Supreme
Court. 1t is not limited to those who hap
pen to be in office when the Constitution
was promulgated. The fundamental laws
creates the tenure, and prescribes that
whoever shall be appointed to this Office
thereafter 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 additional Justices
hold subject to the will of the Legislature,
would be in effect to admit that they were
not Justices of the Supreme Court.
The Office of a Justice of the Supreme
Court is created by the Constitution, which
vests the Judicial power of the Kingdom
in this one Supreme Court. The Censtitu-
ton has placed this Court beyond the coli--
troll of the Legislature, but adds that this
Judicial power is also vested in inferior
courts over which the Legislature has
power, for it can create them and pre-
scribe the tenure of Office of the Judges of
these Courts. By the Goth Article the Ju-
dicial power can be distributed by the Leg
islature among the Supreme Court and the
inferior Courts, but this does not create
the office of Justice of the Supreme
Court, or define the tenure by which it is
to be held, nor does any article of the Con-
stitution grant such power to the Legisla-
ture,
A Justice of the Supreme Court when
appointed holds his office in accordance
with Article IS of the Constitution, that is,
during good behavior. A statute, which
In terms Or by implication, prescribes any
other tenure of office would be contrary to
the Constitution. Suppose, for example,
the Act of 1886 had read that the additional
Justices should hold office only so long as
the Act remained unrepealed. 1t would
be apparent that this would make the ten
ure OF their Office at the will of the Legis-
lature, whereas, the Constitution saws, they
shall hold office during good behavior
But 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 ap-
poip tment to remove Justice of the Su-
preme Court. This cannot be done, for it
is not one OF the methods of removal pre-
scribed by the Constitution.
Its claimed that one Legislature cannot
bind a succeeding one, and that since the
Legislature of 1886 enacted the law pro-
viding for two additional Justices, the Leg
islatute of 1887 can repeal this law.
On this question Chief Justice Marshal of
the Supreme Court of the United States
says: The principle asserted is that on
Legislature is competent to repeal any Act
which former Legislature was competent
to pass, and that one Legislature cannot
abridge the powers of a succeeding Legis-
lature. The correctness of this principle,
so far as respects general legislation, can
never be controved. But if an Act be done
under law, a succeeding Legislature cam
not undo it. The past cannot be recalled
by the most absolute power.
hon Iou iS
tract, when absolute rights have vested
under that contract repeal of the law
cannot divest these rights"
Fletcher VS.. Peck, 6 Cranch, 87-148. But
without deciding whether the acceptance
OF an office without definite term amounts
to contract, it is sufficient to say that the