The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-28
AN IMPORTANT CONSTITUTIONAL
QUESTION.

i ~
morning Chief Justice Judd, with
Justices Bickerton and Dole, entered
the Supreme Court room, followed by
officers of the Court, the Attorney
General and his deputy, General
Hartwell for the writ of mandamus
and other attorneys, besides num-
Der of spectators. Justice McCully is
/ still confined TO his home with i'll
health. Before the argument was
concluded nearly the entire town
| came in.
The Attorney General stated that
the papers were served at four in the
afternoon the day before. He had
caused service to be accepted, and
though the return was only in rough
now, he would consent to go on at
once. The case then proceeded, Mr..
Hartwell reading the petition, atfi-
davits and order. The Attorney
General read the return. The gist of
the matter is contained in the final
clauses of the return, which states:
"That the applicant is Chinese male
and is not n male of Hawaiian, Amer
lean or European birth or descent,
and is not entitled under the COnsti-
tuition or laws of this Kingdom to
vote or be registered on the list to
vote for representative"
l.. AhlO is naturalized citizen un-
der the Constitution of 1864, and as
such frequently voted previous to the
year 1887. Except that he is a per-
son of Chinese birth he is duly quail
fed toNOte.
Mr.. Hartwell argued that the issue
was clearly presented on the return,
which operates as demurrer, The
question is not one of policy, but of
right. There are only about twenty
who can be affected by this matter,
about that number only remaining in
the country of those who were natur-
allied prior to the Constitution of
1887. About thirty have naturalized
since. The Constitution does not pre-
tend to set forth all of the rights of
Hawaiian citizens. Very few statutes
since 1887 have touched upon ques-
tions of constitutional right. The
Acts of 1887 (amended 1888 and 1S9O)
are the only ones affecting the rights
of naturaliZed subjects. Section 49,
of the Civil Code, as amended, secures
to naturaliZed Hawaiian subjects 'all
of the rights, privileges and immuni-
ties of Hawaiian subjects. Article 70
of the Constitution expressly main
tains in full force all laws "not repug-
nant to this Constitutions Unless it
be expressly shown that law is re-
pugnant to this Constitution it re-
mains in force The Constitution of
1887 does not respeal vested rights. If
so, such rights are still in existence.
This seems to have been the ground
taken by this Court in the matter of
Kekaula, recently decided. II may
be argued that the Constitution of
1897 does prohibit Kekaula from
voting, but it does not pro-
hibit the Chinese. The prohibition
against voting on account of felonious
branding of cattle, says, "who shall
have been convicted" ETC., and so if
one who desires to vote to-day has
been convicted he cannot vote. But
it is not so with the question before
the Court. What question of repug-
nancy can arise? 1t is a question to
be decided upon legal grounds only.
No question of public eXpediency can
be considered. If it could, it might
well be asked why citizen of Ahlo's
standing, repute, and general charac-
ter, who has become identified in
every respect with the country; who
has often exercised the elective fran
chise, should now be deprived of his
right.
The Constitution of 1887 does not
deprive any one of rights vested in
him under the former Constitution.
1t is one thing to enlarge or create
new political rights, or prescribe the
manner of exercising them; it is
another and a different thing to take
away such rights without due process
of law. That is prohibited by every
Hawaiian Constitution.
The Acknowledgement replied
briefly, taking the ground that the
Constitution can only be construed
and not altered and by the COnsti-
tuition, persons of Chinese birth or
descent cannot vote.
The Court asked if the Constitution
could take away the right to vote
where once it has vested.
Mr.. Hartwell replied that, in his
opinion, it could not. The Constitu-
ton does not do it. A person born in
Hawaii is of Hawaiian birth, and
must be allowed the privileges of that
birth. Ahlo is not of such birth, but
he is q naturalized Hawaiian : he has
no recourse to the land of his birth.
Article 81 of the Constitution does
not specifically exclude Ahlo, and he
should be allowed his right to vote.