The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-09-25

/ is spacious. IL is that a. other method
/ ct constitutional amendment are not spe
. c1fied, therefore they are not prohibited
I hut this is not the law. II is held in the
/ United states, where the question ha:
/ mainly arisen, that the only method b,
| which amendments can be made must
| be solely III accordance with the provi-
| sions oil the constitution revision OIL
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
ity upon constitutional questions not only
Ia the United STATES, but whose opinions
are quoted win respect IN England ah'i
other parts of Europe. This has also
been definitely stated by the judges oil
the supreme counts OF various OF the
states where tue 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-
stitution, were exceedingly restricted in
the elective franchise, frequently sought
TO obtain a revision by appeals to legis-
lature. These appeals were as frequently
disregarded, and at last constitutional
convention called by the people met and
drafted 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 a 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 a 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 Almost extra
ordinary similarity to our own case. The
legislature of the State, in response to a
popular demand, proposed to enact
law calling a constitutional convention to
revise the constitution of the State but,
doubts arising and having been ex-
pressed in the House upon the question,
the matter was submitted to the Justices
of the Supreme Court. The terms of
Article Is of the Constitution of the
State of Rhode Island with regard to
amendment is as follows: the gen.
eral assembly may propose amendments
TO this constitution by the vote of the
majority of all the members elected to
each House. Such proposition for
amendment shall be published IN the
newspapers" printed copies sent to all
OF the State and the people thereafter,
when the succeeding House was to be
elected, should then vote upon the con-
carried by three-fifths of all the voters of
the State such amendment should then
become 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."
Upon March 80, 1888, the Supreme
Court of the State rendered their udani-
nous decision to the legislature in
which they say eve are of opinion that
the mode provided in the constitution
for the amendment thereof is the only
mode in which it can be constitution
ally made. The ordinary rule is that
where power is given to do thing in a
particular way there the affirmative
words marking out the particular way
prohibit all other ways by implication so
that the particular way is the only way in
which the power can be legally execut-
ed" In support ofthis view the Court cited
important cases from high English auth
critics and from other portions of the
United States. One of the great Eng
lish cases referred to contains the follow
ing statement of the law: 'The word
may in the statute means must or shall
when the public interests or rights are
concerned or the public or third persons
have claim that power shall be exer-
cised." Judge Shaw, one of the
most eminent judges ever produced in
the State of Massachusetts,, expressed
the same views in case which came
before the Supreme Court of that State
The Supreme Court Of the State of Con-
necticut gave the same views with re-
gard to the use of the word may in a
similar position. III one case as an illus
tration the Court said that if any other
construction were admissible the legisla-
ture might take such measures as would
result in serious wrong to the rights of
individuals or the subject and that the
only safe and constitutional method is to
proceed in the manner prescribed by the
law or constitution. Without citing fur
ther authority upon this point, your COM
mittee are of the opinion that the bill
which has been submitted to us cannot
be enacted and become law without a
plain and fragrant violation of the prin-
ciples of the constitution which is now
the law in this country.
Without reporting at length at the
present time upon the other matters re-
ferred to the committee, we desire to
state that we are unanimous in support
of amendments to the constitution, such
amendments as we may deem necessary
and this Legislature may pass upon.
WIN III. CoRNwELL, Chairman.
]. MARSDEN,