The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-09-30

would be an exceedingly bad precedent
for future guidance, for if the constitution
OF the country could be overhauled and
remodeled or entirely revised every time
the Legislature saw fit to authorize a
constitutional convention, there is no
telling where the disposition to overhaul
and revise would stop.
Your committee so far has not entered
into the discussion OF the legality of the
proposed bill. In view of what we be-
lieve to be the law upon the subject, this
bill cannot be passed bv this House. 1t
will be an unconstitutional act. The law
upon this point appears TO be so clear
that a few references only will be made
about it We find that the argument
which is made upon the use OF the word
"may" in Article So of the Constitution
is specious. 1t is that as other methods
of constitutional amendment are not spe-
cited, therefore they are not prohibited.
but this is not the law. 1t is held in the
United States, where the question has
mainly arisen, that the only method bv
] which amendments can be made must
be solely IN accordance with the provi-
sions OF the constitution revision or
amendment to which is sought, or that
such amendment can be made by legis-
lature in case OF the absence OF any pro-
| vision whatever in the constitution,
This is the opinion OF the learned Judge
Cooley, who is recognized as an author
| lty upon constitutional questions not only
IN the United States, but whose opinions
are quoted with respect in England and
other parts of Europe. This has also
been definitely stated by the judges OF
the supreme courts OF various of the
states where the question has arisen in
cases coming before the courts. In Mas
sachusetts, in New York, in Alabama, in
Wisconsin, in Rhode Island and in other
states the questions have arisen and
have all been decided the same way.
Perhaps the first case which arose upon
this subject in the United States was the
great case OF Luther against Borden, in
which the people of the state of Rhode
Island, who, by its former charter or con-
the elective franchise, frequently sought
to obtain revision by appeals to legis-
lature. These appeals we're as frequently
disregarded, and at last constitutional |
convention called by the people met and |
drafted q constitution which was both !
liberal and republican in form; submit |
ted the same to the people, and upon a |
popular election it was adopted by con-
siderable majority. When the legislature |
elected under its provisions and COVER |
nor with other state officers sought to |
take possession of the state, conflict
arose, out OF which this case went up to
the Supreme Court of the United States,
and it was there held in an unanimous
opinion, delivered by the learned Chief
Justice Tarney, that all of the proceed
ings from the inception were wholly null
and void, and that the only method by
which an amendment could be obtained
TO the constitution in the state of Rhode
Island or q new constitution be provided
must be under the provisions OF the
former fundamental law.
More recently case again arose in
that same State which has most extra
similarity to our own case. The
legislature Of the State, in response to q
popular demand, proposed to enact a
aw calling constitutional convention to
revise the constitution of the State but, |
doubts arising and having been ex-
pressed in the House upon the question,
he matter was submitted to the Justices
If the Supreme Court. The terms OF
Article Is of the Constitution of the
State OF Rhode Island with regard to
is as follows: The gen.
sral assembly may propose amendments
o this constitution by the vote OF the
majority OF all the members elected to
Zach House. Such proposition for I
shall be published IN the
printed copies sent to all
If the State and the people thereafter,
when the succeeding House was to be
elected, should then vote upon the con-
'titutional questions presented and if
;arried by three-ffths of all the voters OF
he State such amendment should then
become a part of the constitution. 1t
will be observed that the wording of the
Rhode Island Constitution is identical
With ours in the use of the word 'may.r
Upon March 50, 1888, the Supreme
Court of the State rendered their udani-
nous decision TO the legislature in
which they say eve are of opinion that Z
he mode provided in the constitution
or the amendment thereof is the only
node in which it can be constitution
lily made The ordinary rule is that
where power is given to do thing in
particular way there the affirmative
words marking out the particular way
prohibit all other ways by implication so
hat the particular way isthe only way in
which the power can be legally execut-
ID. In support of this view the Court cited
cases from high English auth
orities and from other portions of the |
United States. One of the great Eng
ish cases referred to contains the follow
ng statement of the law: ''The word
may in the statute means must or shall
when the public interests or rights are
or the public or third persons
nave claim that power shall be exer-
;ised.p Judge Shaw, one OF the
most eminent judges ever produced in
he State of Massachusetts, expressed
he same views in case which came
before the Supreme Court of that State
The Supreme Court of the State of Con-
lecticut gave the same vie3s with re-
gard to the use of the word may in a
similar position. In one case as an illus
ration the Court said that If any other
wereadmissible the legisla-
ure might take such measures as would
esult in serious wrong to the rights of
or the subject and that the
,nly safe and constitutional method is to