The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-09-20

Noble Marsden was perfectly will
ing To let the matter drop if the Min
lister of Finance would withdraw the
charge.
The motion to lay on the table was
carried (the Cabinet not voting.
The secretary read a cOmmunica-
ton from the Supreme Court as fol-
lows:
DEPARTMENT OF THE JUDICIARY, !
HosoLuLU, H. l., Sept. Is, 1892.
To the Honorable Legislature OF the Ha-
waiian Kingdom:
The Justices OF the Supreme Court
have had the honor to receive from your
Honorable Body the following resolu-
ton:
"Resolved, That the opinions of the
Justices OF the Supreme Court be re-
quired upon the following questions,
namely: The Legislature now consisting
of but forty-six elected members owing
| TO the resignation of two members, are
| twenty.four or twenty-five OF such mem
bers required to form majority OF all
| the elective members of the Legislature
within the meaning OF Article Al OF the
| Constitution "'
Article Al of the Constitution pre-
scribes that the Sovereign shall remove
| the Cabinet upon vote OF want OF con-
| fidence passed by a majority OF all the
elective members of the Legislature"
| and the question upon which our opinion
| is required is whether this means ma
| iority of all the elective members actu-
ally holding seats in the Legislature, or
| {. majority of the full quota OF elective
| members authorized and required by the
Constitution (that is 48 members) mos dl-
minishing this number on account of va
cancies. 1t is evident that the term
elective" is used in order to exclude
the Cabinet, who are appointive and not
elective members, from participation in
such a vote. 1t is also evident to US
that the phrase, "a majority of all the
elective members of the Legislature, Z"
would not authorize majority of bare
quorum to pass vote of want of conf
dence. And we feel obliged to say that
the phrase leaves room for honest doubt
as to whether the majority intended is
that of the actual members or of the full
number required to be elected, that is,
twenty-four Mobiles and twenty-four Rep
resentatives. Ordinary legislation is au-
thorized by Article 40 to be conducted by
quorum, which is declared to be a ma
jority of the whole body: And major
ity vote OF such quorum is sufficient for
the adoption OF any measure. See Rule
of the Legislature.
The Constitution provides for four con-
tingencies or subjects upon which the
decisive vote shall be otherwise than for
ordinary legislation. These are: Qst)
Article Al, the vote of want of confidence !;
(2d) Article 4S, the vote upon passing a
bill over the Sovereign's veto; (3d) Ar
tcle 65, the vote to remove Judge of
Court of Record, and (4th) Article 50,
the final vote upon an amendment OF the
Constitution. The language used when
these four matters are the subject OF
vote in the Legislature is either ina
jority of all the elective members" "two-
thirds of all the elective MEMBERS" or
''two-thirds of all the members" On
such occasions partisan feeling is apt to
be warm, and the Constitution has
wisely provided in order that insufficient
reasons for such action shall not prevail,
that the decisive vote on these questions
shall be by not a majority or two-thirds
of the members present, but OF the whole
body, and il the absence OF mem bers
from the House when the vote is taken
is not to lessen the number necessary to
a decisive vote, We cannot see why va
cancy by resignation should have that
effect. The reasons for such action
should be cogent enough 10 convince a
majority of the whole constitutional num-
Der of members, and there should be no
temptation offered either to members
rendered timid in times of public excite
ment and disposed to evade their duty
by resignation, or to others who would
seek to induce them to resign or even to
put them out of the way, and thus reduce
the number essential to valid vote.
We consider that this safeguard of the
Constitution should be preserved in its
entirety. The presidents furnished us
are in favor OF this position. The cases
in the Supreme Court of the State of
California-San Francisco VS.. Hazen, 5
Cal. 175, McCracken vs.. San Francisco,
Is Cal. 594, Grogan VS.. San Francisco,
Is Cal. 500, and Satterlee VS.. San Fran
cisco, % Cal. 315-all take the view that
the expression in the charter of the City
Of San Francisco that no ordinance
should be passed .'unless by majority
OF all the members elected to such
Board" of Aldermen, means majority
OF the votes of the entire number
which the charter provided should be
elected. In San Francisco vs.. Hazen.
above cited, the Court said: "If the word
elected is to be taken as applying to
members actually in Office, it follows
that by resignation or otherwise the
Board may be reduced to one member. and
he would be as competent to act as full
Board.'
The reasoning of the Court in Osburn
vs. Staley. 5 w Va. So, Ii Am. Rep.
GAO, sustains the view of the California
Court. Here the Constitution of West
Virginia provided that "no bill shall
be passed by either branch of the Legis-
lature without an affirmative vote of q
majority of the members elected thereto.
The Senate, when full, consisted of twen-
ty-two members-one seat was vacant
by resignation and the bill received only
eleven votes. The Court say THE true
theory of representative government is
that majority OF the representatives of
all the people to be bound by any law
should assent to it, and it cannot be
doubted but that the people, when they
put this provision in the Constitution,
intended to secure themselves against
the passage of any law to which major
ity of all the people should not consent.
The representatives of the people should
be governed by the spirit of the Consti-
tuition and in doubtful cases should de-
cline the exercise Of power. For these
reasons, with all respect, it was the duty
OF the Senate to have declared the bill
not passed" But the Court, deeming it
not clear beyond a reasonable doubt that
the words members elected" referred
only to persons elected at the last pre-
ceding elections, although they may have
ceased to be members at the time the