The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-10-19
IMPORTANT DECISION.
TIE Acfi0us of an Attorney
General Adj Interim are
Not Lawful.

Mr.. A. S. Hartwell, as counsel
for Henry F. Poor, charged with
five cases of enlightenment, made a
motion to quash the indictment on
the ground that there is no such |
office as ACKNOWLEDGEMENT ad in
term. The Court sustains the mo-
ton.
Regina VS.. Henry L. Poor Motion
to Quash Indictment. Reserved
to Court In Banco Before Judd,
&. -, Bickerton and Dole, u.
OPINION OF THE COURT BY DOLE, ].
The indictment in this case is
signed, H. A. Widemann, Attorney
General ad interim, by his deputy
Chas. Creighton" The prisoner
moved to quash the Indictment be-
cause it 'is presented by an officer
not known to or authorized by the
Constitution or Laws of the Hawai-
ian Islands, and that the said indict
meuJ is not presented by an officer
having legal or constitutional author
ity to present the same"
The case of Rex V. Kanaau, 3 Haw
669, and Rex v. All Lin, Haw. SO,
are eeferred to as having settled the
Law Of this question against the mo-
ton TIE prisoners counsel, how
aver, contends that as the tenure of
Office Of Cabinet Ministers under the
Constitution is different from their
tenure If office as it existed under
Al r Il
the Fundamental law when those
cases were ajudicated, they are not
necessarily authoritative in the pres
eat question.
Under the Constitution Of 1864,
the Ministers held "office during His
Maiesty's pleasure" and the King
might aud did appoint and dismiss
them according to the within of the
moment. It was fully within his
powers to appoint temporary Min
lister because he could cancel any
Ministerial commission whenever he
wished. Under the present funda
mental law, however, while the SOW
ereign may appoint a Minister,
he may not remove one without a
legislative vote of want of confidence
against him or his conviction OF fell
ony. The sovereign, therefore, has
now no power to appoint temporary
Minister or Minister ad interim,
such a term involving the theory of
inherent power existing in the sover-
eign to recall the commission of
Minister:
This view is consistent with the
reasoning of the Court in Rex V.
Kanaau, above referred to. An in
dictment signed by an ad interim
Attorney General was sustained on
the ground that 'the office of the
Attorney General is one which is held
during the Kings pleasure, is not
appointable for any certain time OF
for life; and the words ad interim
are not in any way different in effect
from during the Kings pleasure;
they are added for the purpose o.
Indicating to all persons that the ap
pointment is merely temporary" ~
the words during the Kings pleas
ure" are not now in the Constitution
this reasoning of Rex V. Kanaau ha
therefore no application to the pres
emit case.
The question then naturally arises
what is the effect Of commission
appointing an Attorney General a.
interim? Does it result in a perma
nent appointment of an Attorney
General, or is 1t void?
Although respectable argumen
could be made in favor of the forme
conclusion, the reasons against
are very strong. There is no sue
office known to the written law as a
ad interim Minister, and a royal con
mission may not play fast and loos
with official titles fixed by statut
inconsistently with the legal tenul
of office. Such irregularities ar
dangerous, and inconsistent wit
the constitutional safe guards {
official integrity and independence
For instance. if the appointment (
one as Attorney General ad interi
should be construed as perma
emit appointment similar comml
sions might become common, ar
containing this vague evidence OF
implied agreement between the OF
Ger and the Crown that the form
would resign at the request OF Il
latter, which perhaps few men wou
have the courage to ignore, Wou
thus TO u C6rbdlu oAtSub tSuOt w Cfo
the constitutional provision again
removal of Ministers by the sc
ereign. Such an attempted modi
cation of the constitutional tenu
of Office of Minister by the Crov
cannot be passed over or confirm
by the Court, whose responsible du
ii is to guard the Constitution fro
Legislative or official attack
The Importance of this aspect
the question before the Court m
be illustrated by supposing vaean
in the Supreme Court, where the t.
IRE of office is during good behavl
to be filled by person COMMISSION
as Justice of the Supreme Court
interim, or for three months, or d
ing Her Majesty's pleasure. 20,
such an open defiance of constr
tional provisions be tolerated or ST
commission be recognized?
There is another aspect OF t
,,oot;on which has been referred