The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-29
DISAPPOINTED CHINESE.
The Ahlo Mandamus Case Set
tied. Opinion by Judge Dole.

Supreme Court of the Hawaiian
Islands, January Term, 1892. In
Banco. Judd, G. J.. Bickerton and
Dole, u. McCully, J. absent.
In the matter of the application of
L. Ahlo for writ of mandamus.
The Constitution substitutes the race stat
Us OF Hawaiian, American or Euro
pean birth or descent as a condition
for the voting privilege in place of the
status Of citizenship which was a re-
quirement under The previous cOnsti-
tuition.
A native OF China who was naturaized
here and acquired the right to vote
under the previous constitution was
deprived of that right by the promul-
CATION of the present Constitution.
The petitioner prays for a writ of
mandamus to be addressed to Henry
Smith, Samuel F. Graham and
George n. Shaw, Inspectors of Elec-
tions of the I'd Precinct of the 4th
District of Honolulu, where the petit
toner resides, directing them to
cause his name to be entered on the
list of voters for Representatives,
which they had refused to do on the
sole ground that he was of Chinese
descent.
An alternative writ was issued re-
turnable January 9th, at which time
the respondent made answer.
Mr.. A. S. Hartwell for the petition
er; Acknowledgement Whiting for the
| respondents.
BRIEF OF PETITIONERS COUNSEL.
The sole question is whether the
! petitioners Chinese birth and de
/
l. The Constitution of 1887 does
not pretend to state all the rights and
| privileges of Hawaiian subjects, but
| pressly declares that all laws then in
force ''shall continue and remain in
! full effect, until altered or repealed
by the Legislature: such parts only
excepted as are repugnant to this
Constitution. All laws heretofore en-
acted, or that may hereinafter be en-
acted, which are contrary to this Con-
| stitution, shall be null and void.n
This means that all the civil, polIt-
ical and legal rights of Hawaiian SUBJ
jects are neither based on, nor do they
originate with the Constitution of
1887. That Constitution leaves in full
| force all the statutory provisions, in
Guiding the provisions secured by the
| Constitution of 1864 which are not
"repugnant' or contrary" to its
| provisions.
In the Constitution of 1887 the Sow
ereign renounced the absolute veto
power, and the power of appointing
| Mobiles and Diminishing Cabinets, and
limited the exercise of his public acts
to those which his Cabinet should
advise and consent to. But no pri-
vate rights of Hawaiian subjects
We're destroyed. By the law always
in force since this country had a Con-
StitutiOnal Government, no mans
| right can be taken from him except
| by educ process of law" L submit
| that as the petitioner had the right
to vote under the Constitution of 1864,
that right cannot be taken from him
by any subsequent statute or Consti-
! tuition, and that it has not been taken
from him. His rights were clearly
fixed by law, every foreigner SO
naturalized shall be entitled to all
the rights, privileges and immunities
of an Hawaiian subject. "-Section
433, Comp. Laws.
This Act was amended in the Acts
of 1887 and 1890, but not word of the
above quoted sentence is changed.
The Constitution of 1887, in requir-
ing voters to be "Of Hawaiian, Amer
lean, or European birth or descent"
does not refer to those who then had
a constitutional, statutory, and vested
right to vote.
1t is one thing to enlarge vested
private rights, one thing to direct the
manner in which they shall be eXer-
cised; it is another and different
thing to deprive one altogether of
such rights. That, l submit, ought
not to be inferred or implied by the
language used in the Constitution of
1887.
2. This Court held in Kekaula's
case, that as conviction in 1882 fol-
felonious cattle branding did not
under the laws then in force dis
qualify one from voting, the disquali-
ficatiOn imposed by Article 70 of the
Constitution of 1887, of one "whO shall
have been convicted of felonious cat.
tie branding" did not disqualify Ke-
kaula.
The language of the Court in that
case was explicit, in its recognition
of right to vote existing under the
Constitution of 1864, viz:
"Ql-The specified prescription in
<A1O1Sl 80 vi JlIC vi
1887, making a conviction for the
felonious branding disqualification
from civil rights cannot be applied
to instances of this offence commit
ted previously TO the date of this Con-
stitution, for it would be ec post .fdcto
legislation.
elf Kekaula now lies under dis
qualifications, it must be pursuant to
the provisions of Article 70 of the
Constitution of 1851
There is nothing legally "repug-
nant" or contrary" to the petition
ers right, in the requirement of the
Constitution of 1887 as to voters
With questions of policy this Court
has nothing to do.
1t is not question whether more
Chinese shall be naturalized or not
but whether those who were natural.
lied voters until 1887 are not now
voters.
Respectfully submitted,
ALFRED S. HARTWELL,
Atty. for Petitioner
January q, 1892.
OPINION OF THE COURT BY DOLE, T.