The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-01

LIuUp III force until EufLHFE bffieF Oh f
the Executive and Advisory Councils F.
Now, it is difficult 10 SEE how gen I
eraI legislative authority could ne
exercised by the Advisory Council
alone. in view of the provision that
all Hawaiian laws not inconsistent
with the Proclamation are to con-
tinue in force until further order of
both Councils. The Advisory Council
alone could neither amend nor repeal
any Hawaiian law; apa, since the
common law has been adopted as Ha-
waiian law so far as tn fill up the gaps
which would otherwise exist in Ha-
waiian law, il is at least doubtful il
the Advisory Council alone could
pass any law whatever; for every law
would be, by implication If not eX-
pressly, an amendment or repeal Of
some existing Hawaiian law. To
hold that the Advisory Council alone
has legislative authority would be TO
annul section of the Proclamation,
and that would be TO defeat the pur-
poses Of the Proclamation. Instru-
ments should, If possible be so con-
strued as TO accomplish the purposes
for which they were made. There is
nothing in section of the Proclama-
ton prohibiting the sitting together
of both Councils as legislative body,
but on the other hand, section ) con-
tains by unequivocal implication
grant Of Legislative power to both
Councils.
"Under the Constitution of 1887,
(Article Az THE legislative power Of
the kingdom is vested in the King
and the Legislature, which shall con-
sist of the Mobiles and Representative
sitting together This would seem
/ to exclude the Cabinet from partici-
| pating in the exercise of the legisla-
| tive power, Just as section OF the
Proclamation, if standing alone,
would seem to exclude the Executive
/ Council from participating in the ex-
ercise of such power. But by an
} other Article Az Of the Constitution,
/ THE Cabinet hold seats eE OHciO, in
| the legislature Constituting these
Articles together, 1t has never been
/ doubted that the Cabinet had a right
to participate in legislation. But sec
| ton of the Proclamation, if not in
so many words, Yet just as clearly,
gives the Executive Council the right
TO participate in legislation. Thus
/ construed, both sections may stand,
| and the Proclamation made effective.
/ The two Councils sitting together are
/ a legislative body. It is unnecessary
/ here to consider the full extent of
/ their powers.
! We take judicial notice of the fact
! that these Councils are the legislative
authority, and the only legislative
authority of the Hawaiian Islands.
We pass now to the question whe-
! Their the said Councils have the power
/ to punish for cOntempts. An argu-
ment is suggested that Article 81 of
| the Constitution of 1887 which gives
| the power to the Legislature to pun
/ ish for contempt survives and was not
/ abrogated by the Proclamation of
| January 18th. But the Legislature
referred to in that Article is the Leg
| islature described in the 44th Article
| of the Constitution for which is now
substituted under the Provisional
( Government the present Legislative
4 body consisting as we have seen, of the
Executive and Advisory Councils. 1t is
urged upon us that legislative
| body has no inherent power to punish
| generally for contempts, and the case
of Kilbourn vs. Thompson, 103 Z. g.,
| 1888, is cited to sustain this view. In
this celebrated case 1t is made quite
clear that the British House of Com
mons traces its general authority to
punish for contempts to its early con-
stituti0n as judicial body, and holds
that the Congress Of the United States
has not that authority, as its power
| must be found in some express grant
in the constitution, or be found neces-
sary to carry into effect such powers
as are there granted. The Constitu-
ton of the United States gives au.
thority TO each branch of Congress to
punish it's own members for disorderly
conduct, ETC.; also to decide contested
elections. And the House of Repre-
sentatives has the sole power of i'm.
parchment of government officers
and in these instances where the eX.
animation of witnesses is necessary tC
the performance of these duties the
House may fine or imprisOn cOntu
maciOus witness. And the Court i:
careful to say that they do not decide
that the power to punish q person no
n member for contempt does not eXis
to enable either House to exercis,
successfully their functions of legisla
ton, but base their decision upon tn
fact that the subject matter of inquir.
J upon which the plaintiff KilbOurl
| was called to testify was judicial, ant
not Legislative.
The Congress of the United State
can only exercise such powers as ar
: granted by the Constitution all othe
: powers remain in the several State
: composing the Union and, in thi
3 view it is doubtful if Congress coul
enact law authorizing itsel
9 to punish for contempt person
not members of that body. Blu
| IN h. I, oil q
q that is, the Executive and Advisor
: Councils sitting together, have passe
: can Act relatiI,g to contempts,
? which was approved on the 3ls
g January last. This Act, being Act II
8 provides that the Executive an
j Advisory Councils sitting togethel
: shall have authority to pun
l ish persons for contempt in certai
e enumerated cases, and it is appIicabl
= to all persc . whether members of th
D Councils or not. With this eXceptiO
s and few other slight modification
3 it is i'll substance the same as articl
8 81 of the Constitution of 1887. Th
d Councils had authority under sectio
e of the Proclamation to enact TIL
u law, not being trammeled by any II
2 hibitiorl of any constitutional prov
: sion. Here then is express authorlt
: to punish for cOntempts. And We al
= of opinion that the Councils have il
e herent power also TO exercise this al
= thority in so far as the same is e5sel
v tial to the performance of their 9th
;. functions.
t Did the Executive and Advisor
e Councils authorize the Chairman
If issue the warrant of arrest? We rep
s in the words of the decision appeals
/ from:
at is clear that he could not legal