The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-15
DEPT. OF THE JUDICIARY,
HONOLULU, FL. T., Jan. II, 1892.
To HER MAJEsTY's CABINET:

HONOLULU, IL. l., Jan. II, 1892. {
To HER MAJEsTY's CABINET:
GENTLEMEN: The question upon
which the opinion of the Justices of
the Supreme Court is requested by
you III your letter OF the 7th instant
is as stated by you as follows:
On the 18th June, 1882, one j. Ke-
koula was convicted before the Dis
srtct Court of Kau of the offense of
felonious branding of cattle and was
fined $40, which fine was paid. Since
said conviction, said j. Kekaula has
been resident and has voted at all
elections for Representatives in the
said District of Kau.
He has not received a pardon re-
storing to MIN his civil rights
Under Article Is of the Constitu-
ton of 1864, said j. Kekaula was
not deprived of his civil rights and
was eligible to Office of trust, honor
and profit.
But under Article 70 Of the Con
stitution of 1887, q conviction of the
offense of felonious branding of
cattle is among the offenses named
which constitute bar for such con-
victed person to vote or sit in the
Legislature.
Question l. Under the above cir
cumstances, can j. Kekaula vote at
the coming election, he being other
wise duly qualified? and
Question 2. Under the above cir
II
eligible to offices of trust, honor and
profit, the otfense of which he was
convicted having been committed
five years prior to the PRONUNCIATION
of the Constitution of 1887?
Upon the above stated case, we
have the honor to answer:
a.. The specified prescription in
Article 70 of the Constitution of
1887, making a conviction for the
.felonious branding a disqualification
from civil rights cannot be applied
to instances of this offense committed
previously to the date of this Consti-
tuition, for it would be er post .facto
legislation.
. ~. If Kekaula now lies under
disqualifcations, it must be pursuant
to the provisions of Article 70 of the
Constitution of 1864. It is stated in
the letter Of Your Excellencies that
he was not disqualified Hereunder.
We beg TO be permitted to say that
while the result Of our consideration
of the scope of this articlea ccords
with this expressed opinion, there is
involved in the construction of the
article a question which requires
judicial settlement. This earlier ar
ticle, after specifying five offenses,
i.e., theft, bribery, perjury, forgery
and embezzlement, the conviction of
any of which disqualifies from hold
ing any Office of honor, trust or
profit under the Government, adds
"or other high crime or INSIDE
meanor," thus classifying these five
offenses as singh crimes and rnisde-
meanors." Crimes are made synony-
nous with felonies by our statute
and are such offenses as are punish
able with death or Imprisonment for
a longer term than two years, or by
the forfeiture of civil or political
rights; also theft. All other ofenses
are misdemeanors. We find, how
ever, that high misdemeanors" do
not belong to that class of ofenses
called misdemeanors, but, according
to the common law authorities, are
misprisions-a higher grade Of of
lenses than misdemeaGors, and
which were of public character and
% L.
sell on Grimes $50, 4 Wendell's
Blackstone III, Coke Sd Inst, 36.)
In some cases persons charged with
felony were, under the artificial and
arbitrary subterfuges of the common
law, relieved of the charge OF felony
and proceeded against for a high
misdemeanor. a Wendell's Black
stone, 119). It will be seen, there
fore, that high misdemeanors were
offerses of public Importance, and
were sometimes felonies or closely
related thereto.
AS our law only recognizes felonies
and misdemeanors, high misdemean-
ors must be classed as felonies, which
conclusion we adopt. With this un-
derstanding, the constitution of 1864
which follows the constitution of
1852 on this point, provides that a
conviction of felony disqualifies one
from holding Office under the gov
eminent. Felonious branding of
cattle being only misdemeanor, j.
Kekaula is not affected by the con-
stitution of 1864.
We are therefore of the opinion
that he is not disqualified from
voting nor ineligible for election &C
appointment to government Office.
A. T. JUDD,
l.. MCCULLY.
RICH. f. BICKERToN,
CAlpoDD u DOvp