The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1892-01-28
ppINlON or rnt counr h1 ttLl. D.

OpiSiUN OF THE COURT BY DOLE }.
The petitioner claims the right to
vote on the ground that be had such
right previous TO the present consti-
tuition, and that there is nothing in
this constitution Nnick destroys that
right The constitutional provision
for the voting privi!osa limits it to
residents of Hawaiian, American or
European birth or descent. ARTICLES
50, 62). This is a radical change
from the provision for voting in the
constitution of 1864, which limits the
privilege to subjects, article G2)
aud which was annulled by the pro-
mitigation of the present constitution
which substituted tue race require
ment for the old condition of citizen
ship. (Preamble of the Cunstitu-
tion). But Section 4S2 of the Civil
Code provides that every naturalized
foreigner shall be entitled to the
rights, privileges and immunit;es of
Hawaiian subject. This antedates
the present constitution. But what
are The rights of the Hawaiian sub
ject as to voting? Are they not so
merged into the new provisions that
now he votes,--not as a Hawaiian
subject at all, but solely as a resident
Hawaiian, American or European by
birth or descent? If this may be
answered in the affirmative, as we
think it may, the 432 section of the
Civil Code stands untouched by the
constitution, and the petitioner, by
virtue of his naturalization, is enti-
tied to the rights, privileges and i'm
munities of Hawaiian subject, but
voting is not one of them, unless the
additional race condition exists.
A constitution which abrogates the
previous fundamental law, necessarily
repeats all existing statutes inconsist-
ent with itself. 1t may even be said
that it repeats all statute law existing
at the time of its PRONUNCIATION !;
whence the necessity of re-enacting
all such laws as are not repugnant to
it. (Const. Art. 79). When such
constitution takes effect, it is new
departure in the government of the
country, inasmuch as it states anew
the principles upon which the govern
ment is to be administered, and re-
arranges the distributions and limita-
tions of sovereign powers. What is
not changed is reaffirmed. The new
statement of the fundamental law
takes the place of the old.
Under this change of voting con-
dition, from citizenship to race
status, the plaintiff has lost his privi-
lege, whether Intentionally or not ii
does not concern this issue, though
upon general principles, it is to be
regretted. The voting right is 8
privilege rather than a right, and q
duty rather than a privilege. Even
if it is regarded as right, the loss
of it through the PRONUNCIATION of Q
new constitution is by educ process
of law" of the most pronounced
character.
The plaintiffs counsel refers in his
brief to the opinion of the Justices
of the Supreme Court in reply tc
questions addressed them by the
Cabinet in regard to the voting quail
fications of one kekauia, who ha,
been convicted of felonious branding
of cattle in 1882, in support of hi
position in this case.
1t seems to us that that opinion i:
based upon different principles thar
are raised in this case. The circum
stances were also different.
Kekaula had been convicted of al
offense under the old constitution
which did not deprive him of his civil
rights, as it would have done unde
the present constitution, which fount
him in the enjoyment of these rights
The justices consider that the provi
sion of article % of the Constitution
which depriyes one who "shall have
been convicted of felOnious brand
ing of cattle, of his civil rights, die
not apply to Kekaula for two reasons
i. e. because the language "shal
have been convicted" denotes futur,
convictions, and because the depriva
ton of civil rights by the presen
constitutional enactment, for pre-
vious offence committed under law
which did not deprive the offende
of civil rights, would distinctly char
acterize it as er post .tdctO legisla
ton, and construction involving
such a result should not be adopte,
even of a constitutional provision un
less the words distinctly require it a
they do not in that case.
We do not therefore see that tina
case is precedent or guide in an
way to this.
We find that the petitioner is no
entitled to vote, his previous rigl
having been annulled by the Consl
tuition, and therefore dismiss til
complaint.
January 28, 1892.