The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1892-10-17
A Minister AID Interim Not
Known to the Law.
Indictment QuaShed for IllGSality Of Mr.,
WidemannS Commission
Regina VS.. Henry F. Poor, Motion
to Quash Indictment. Reserved
to Court in Banco. Before Judd,
G. j., Bickerton and Dole, JJ.
OPINION OF THE COURT BY DOLE, j.


G.. j., Bickerton and Dole, JJ.
OPINION OF THE COURT BY DOLE, j.
The indictment in this case is
signed, III. A. Widemann, Attorney
General ad interim by his deputy
Chas. Creighton" The prisoner
moved to quash the indictment be
cause it sis presented by an officer
not known to or authorized by the
Constitution or Laws of the Hawai-
ian Islands, and that the said indict-
ment is not presented by an Off
Ger having legal or constitutional
authority to present the same"
The case of Rex V. Kanaau, 3 Haw.
$50, and Rex V. All Lin, 5 Haw. SO,
are referred to as having settled the |
law of this question against the mo-
ton. The prisoners counsel, how |
ever, contends that as the tenure of |
office of Cabinet Ministers under the |
Constitution is different from their |
tenure of Office as it existed under |
the constitution of 1864, which was
the fundamental law when those |
cases were adjudicated, they are not
necessarily authoritative in the pre-
sent question.
Under the constitution of 1864, |
the Ministers held "otfice during
His Majesty's pleasure and the
King might and did appoint and
dismiss them according to the whim
of the moment. 1t was fully within
his powers to appoint a temporary
Minister because he could cancel
any Ministerial commission when
ever he wished. Under the present
fundamental law, however, while the
sovereign may appoint Minister,
he may not remove one without a
legislative vote of want of conf
dence against him or his conviction
of felony. The sovereign, therefore,
has now no power to appoint tenn
porary Minister or Minister I'D in
terim, such term involving the
theory of inherent power existing in
the sovereign to recall the commits
sion 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
Acknowledgement was sustained on
the ground that "the office of the
EASSSLhCO 10 oIlC NhiSh
held during the Kings pleasure, is
not appointable for any certain time
or 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 of
indicating to all persons that the
appointment is merely temporary"
As the words during the Kings
pleasure" are not now in the Con-
stitution, this reasoning of Rex V.
Kanaau has therefore no application
to the present case.
The question then naturally arises,
what is the effect of a commission
appointing an Acknowledgement ad
interims Does it result in perman-
ent appointment of an Attorney
General, or is it void?
Although respectable argument
could be made in favor of the former
conclusion, the reasons against it
are very strong. There is no such
Office known to the written law as an
ad interim Minister, and royal COM
mission may not play fast and loose
with official titles fixed by statute
inconsistency with the legal tenure
of Office. Such irregularities are
dangerous, and inconsistent with
the constitutional safeguards of
official integrity and independence
For instance, if the appointment OF
one as Attorney General ad interim
should be construed as per,
manent appointment, similar com
missions might become common
and, containing this vague evil
dence of an implied agreement
between the officer and the crown
that the former would resign at the
request of the latter, which perhaps
few men would have the courage tc
ignore, would thus to certain ex,
tent tend to evade the constitutional
provision against removal of Minis
ters by the sovereign. Such an at
tempted modification of the con
stitutional tenure of Office of a Min.
lister by the crown cannot be passed
over or confirmed by the Court
whose responsible duty it is to
guard the Constitution from legisla-
tive or official attack.
The Importance of this aspect OF
the question before the Court, may
beillustrated by supposing vacancy
in the Supreme Court, where the
tenure of Office is during good be-
havior, to be filed by person
commissioned as Justice of the Su-
preme Court ad interim or for three
months or during Her Majesty's
pleasure. Could such an open def
ance of constitutional provisions be
tolerated or such commission be
recognized3
There is another aspect of this
question which has been referred tc
in the argument and which was
passed upon by the cases cited; anc
that is, the circumstance that the
person holding the disputed com
mission was also holding at the time
regular commission as Minister il
another department,
The cases referred to decided tina
such a practice was sound. With
out going into the question of thu
correctness of their conclusions upol
this noint under tha then eXiSfinf