The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-06-14

whom salaries are appropriated should
perform their duties for two years with
! out any payment, and III the event OF
! their death or resignation during such
! period, be deprived OF all remuneration
/ for the period during which they per
/ formed their duties, which would be the
/ result should l hold that the approprla-
! ton is only payable at the end OF the
/ fiscal period, to a person who has per-
/ formed his duties for the whole OF such
/ period.
l now come to the grounds relied upon
J in the third paragraph OF the return, the
first being a denial that the relator has
been legally appointed TO, or commIs-
/ stoned as the Chamberlain OF his
Majesty. This denial is not IN my
! opinion in itself q sufficient answer to
the allegation in the petition, that on IIle
first dav OF October, 1888, His Majesty
appointed the relatOr as one OF his
officers of his household, to wit, as his
/ Chamberlain. The return does not deny
the appointment by His Majesty, and
according to all rules OF pleading APP
! picable in these cases, 1t must be taken
/ that the ALLEGATION in the petition Is
admitted. Ii the respondent intended
| to raise question as to the validity OF
/ such appointment, he should nave
alleged the grounds upon which he
relied.
The Attorney General, in his brief,
submits that if the Court should feel
called upon to decide upon the validity
of the appointment made by His Majesty
without the approval Of a Minister, and
against the Cabinet as a whole, then he
also submits that no such power of APP
pointment is vested in the King.
1t does not appear by the return, or IN
anv manner, that the appointment was
Il Of
Minister and against the protest OF
the Cabinet as whole, and it
does not seem to me that it is within
my province to consider any such ques-
ton, except so far as the point may be
gathered from the proceedings.
1t appears from the letter OF the res
pOndent to the relatOr, referred TO in the
petition, that the only ground then taken
for the refusal to pay the salary, was
that your appointment to the office OF
Chamberlain has never been approved
or recognized by the Government
Now, from the fact of the writ being al
lowed, the respondent should have
known that the Court was at all events
prima facie of opinion that such excuse
was insufficient.
However, in order that my views may
be known to the parties, will deal with
the case, though reluctantly, as if the
reason stated in the letter had been ex-
pressly restated in the return.
1t viii be necessary in the first place
to consider what is the status of the
Chamberlain, 1t is not a statutory
office the duties appertaining to which
are defined by law. The statutes Great
I ing the office and defining the duties
were repealed by the Civil Code in 1859,
and until the session of the Legislature
/ of 18645 no provision was made for the
payment of such an officer, when an
appropriation OF s., 900 was made for the
salary OF His Majesty's Chamberlain
and Secretary, and the appropriation
for chamberlain and Secretary con-
tinued until 1888, when it appears as
! Chamberlain only.
The duties of the Chamberlain have
been personal to His Majesty, and it is
now for the first time, so far as 1 am
aware, and have had many OppOrtun-
tiles from my connection with former
! governments, of knowing, that the right
of the Government to approve of the
appointment has ever been asserted, and
it is not suggested by the respondent
that it has been.
The Acknowledgement in his brief re-
fers to the practice in Great Britain
where such an official would retire with
the Ministry, and refers especially to the
sent Majestys reign as to the appoint
ment of the Bedchamber women, and
claims that by analogy the same rule
should apply here.
l do not think there is such analogy,
the rule regulating the holding of offices
in Great Britain, and the responsibility
of Ministers, have been the growth of
centuries, and are not and cannot be
applicable here according to our COnsti-
tuition. In fact if the practice obtaining
in Great Britain were applicable and in
force here, the Court would not have to
| consider this case, because if His
Majesty would not act upon the advice
OF His responsible advisers, in matters in
! which they consider themselves respOn-
sible, they would have to give way or
resign.
I am of opinion that the office of
Chamberlain is personal TO His Majesty,
! and that there is no legal necessity for
the appointment to be by commission or
| in writing, and that it does not require
the approval of the Minister'S
Should person be appointed to the
! office whom the Ministers consider OBJ
! jectionable, they can exercise some con-
| troll in the Legislature by declining to
ask for a vote for the salary.
l therefore hold that this portion of
/ the cause shown is insufficient.
[ come now to the remaining ground
! alleged in paragraph three, wherein
| the respondent denies that said Mac
/ farlane has during said months, or at all,
| performed the duties of such Chamber
/ lain to His Majesty
! This allegation is not traversed, replied
to or excused by the relator, and l must
! therefore take it to be admitted,
| especially as the statement appears in
| the respondents letter to the relator,
| that the respondent was informed by the
relator that Mr.. James w. Robertson.
as vice-acting Chamberlain by appoint
ment of His Majesty, has performed the
| duties of Chamberlain from October LIST,
1888, to March 1st, 1899.
l regret that the letter referred to was
not set out in the petition or return, but
! on the pleadings l must take it to be
admitted that the relator did not, and
was not in position to perform the
duties OF his office, and that therefore he
was not entitled to the salary appro-
priated
Upon this point I think the cause
shown is sufficient, and must be allowed,