The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-09-20
THE OTHER SIDE.
Briefs for the Opposition in the
Ministerial Contest.
BRIEF OF W. R. CASTLE.

members of the Legislature, two
having resigned.
Q. Do "a constitute a majority of
these 46 for the purposes mentioned
in Article Al of the Constitution {?
Ii "a is majority of all these cleo,
tive members, then the vote was car
ried and the Ministry must 60.
Elective does not mean only
which can or may be elected" it
means selected, chosen, ETC." (Cen-
fury Dictionary The word is used
IN the Constitution to distinguish
those members who hold seats by
virtue of election by the people from
those flour Cabinet officers) who oc-
cupy seats by virtue of appointment.
The Constitution uses this word in
several sections (Sections 20, Al, 4S),
and it is evident that it's use is solely
to indicate class or branch of the
House. In Sections 65 and 81, all
the members of the Legislature (both
elective and appointivel are men
toned and intended.
Now, what can "all Of the cleo
tive members mean except all of
those members of the Legislature
In being who were elected as dis
tlnguished from the appointive por-
ton? 1t is significant that, the Con
stltutlon providing the complete
number who may compose the Legis
lature, the absolute number who
must vote is nowhere named as not
less than 80 of the elective members,
or not less than Is of the elective
members, or not less than q of the
Legislature, etc. Such Is the case
with several European Constitutions.
If it Is to mean all of the members
who may be elected (4S), then such
forced construction would gravely
imperil the validity of the laws and
other acts of the Assembly. Nothing
IS better known than that most laws
enacted here and elsewhere are
passed by what is actually minority
of the Legislature, although a ma
jority of quorum.
The absence Of specific number
fixing beyond peradventure the num-
Der of those who must vote, becomes
an almost conclusive argument
against the contention of the Cabinet
and in favor of the position of the
majority presumably; that it must
be a majority vote of the elective
members only, and Of such only as
are actually in esse.
No reasonable construction can in
cllde members not in being. What
reason is there il such construction
must be forced for counting the nom
entities as In the minority? It is
exactly as reasonable to count them
with the majority, and SO create the
supposed requisite majority of all
who might by election become mem
bers of the Legislature.
The use of the words " majority
of the Legislature" s. majority of all
the Legislature" or majority of
all of the elective members of the
Legislature" in the Constitution,
show upon proper and logical anal
ysis of the language, that practically
the same thing Is meant by major
ty." The use Of the word ''all'' does
not increase the number above the
actual number in being. 1t is rarely
the case that the full number of the
Legislature as authorized by the
Constitutions of this or other coun-
tries, is represented There are al
ways vacancies, from death, from
removals and other causes. Yet they
do not interfere with legislation, nor
with the exercise of those decisive
votes wherein the concurrence of a
two thirds or other majority is re-
quired.
r. L., Io,, baoo cafFIaJ IN fha
United States that the two thirds
vote Of the Senate, is a two thirds
vote of quorum. 1t is safe to say
that this principle controls in all
cases applying to purely legislative
bodies
See Cooley, Story, Potter's Decis-
ions and other authorities including
the cases.
In the British Parliament nearly
every private bill and some public
bills are carried by empty benches,
the speaker and the clerk being pres
ent. The theory being CONTRARY to
the law of corporations), that SO long
as there are present officers and
legislature in actual being, the spark
exists aud the acts are lawful though
concurred in simply by a majority
of quorum of vastly less than half
of the whole body.
But a different rule controls with
regard to the large range of corpor-
atoms, municipal and private. The
cases hearing on these must be dis
tinguished and wholly eliminated
from the consideration of this ques-
ton. This will include almost all of
the New Jersey, West Virginia, Cali
fornia and other cases involving the
acts of common councils of cities
and similar bodies.
Perhaps the difference in the law
arises from the fact that corporations
are purely artificial bodies who exist
nv Grace of the Legislature, and ev-
erv requirement of the charter must
he complied with, whereas, all gov
eminent and all powers are in the
neople who are represented by the
fa9islature. But without discussing
the reason the truth remains that the
law il different with corporate acts
and with with Legislative acts.
The gist of the law is perhaps laid
dovn in the cases in the 4th of Mis-
a aonri and 2nd of Michigan Reports.
So'-- W. r. CASTLE.