The Hawaiian gazette., 1893-02-28


Legislative body had power to punish
for contempt.
The Proclamation promulgated on
the 18th of January, 1898, provides
(section 81 that the provisional Gov
eminent shall consist of an Executive
Council of Four Members who
shall administer the Executive De
partments of the Government
according to existing Hawaiian Law
as far as may be consistent with this
Proclamation; and also of an Advisory
Council which shall consist of four
teen members and that "Such Adj
visory Council shall also have gem
eral legislative authority" 1t is con-
tended by counsel that under this
provision the Advisory Council alone
has Legislative power, and that the
Executive Council cannot sit with
them in the exercise of that power.
But the Proclamation further provides
(sectiOn 81 that "All Hawaiian Laws
and Constitutional principles not in
| consistent herewith shall continue in
force until further order of the EXecu-
tive and Advisory Councils" Now,
it is difficult to see how general
legislative authority" could be exer-
cised by the Advisory Council alone,
il view of the provision that "all Ha-
waiian laws" not inconsistent with
the Proclamation are to continue
in force until further order
of both Councils. The Advisory
Council alone could neither amend
nor repeal any Hawaiian law; and,
since the common law has been adop-
ted as Hawaiian law so far as to fill
up the gaps which would otherwise
exist in Hawaiian law, it is at least
doubtful if the Advisory Council alone
could pass any law whatever; for every
law would be, by implication if not
expressly, 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 purposes
of the Proclamation. instruments
should, if possible, be so construed as
to accomplish the purposes for which
they were made. There is nothing in
section of the Proclamation prohibit
ing the sitting together of both coun-
ellis as legislative body, but, on the
other hand, section contains by I'M
equivocal implication grant of legis-
lative power to both councils.
Under the Constitution of 1857 CAR
ticle Az, 1.-THE Legislative power of
the kingdom is vested in the King
and the Legislature, which shall con-
sist of the Mobiles and Representatives
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 Coun-
ell from participating in the exercise
of such power. But by another article
(42) Of the Constitution, "The Cabinet
hold seats eX officio in the Legisla-
ture.n Constituting these articles to-
gether, it has never been doubted that
the Cabinet had right to participate
in legislation. But section of the
Proclamation, if not inso many words,
yet just as clearly, gives the Executive
Council the right to participate in
legislation. Thus construed, both sec
lions may stand and the Proclamation
made effective. The two councils
sitting together are legislative body.
1t is unnecessary here to consider the
full extent of their powers. Have they
power, however, to punish for con-
tempt?
These Councils sitting together
have passed Gan Act relating to con-
tempts," which was approved on the
31st day of January, 1898. This Act
provides that "the Executive and Ad-
visory Councils sitting together shall
have authority to punish" persons for
contempt in certain cases which need
not here be enumerated. With slight
notifications, it is substantially in
the words of Article 81 of the Consti-
tuition of 1887. The Councils I'M
doubtedly had the power, under Sec
ton of the Proclamation, to enact
this law. Furthermore, aside from
express grants of power to punish for
contempt, legislatures possess such
power by implication, in so far as it
is essential to the performance of their
other functions. 8 Am. & Eng. Encyc.
Law TT; Kilbourn VS.. Thompson,
supra; Burnham VS.. Morrissey, IA
Gray 226. The Executive and Advis-
DRY Councils, therefore, have power,
both expressly and by implication, to
punish for contempt.
Did the Executive and Advisory
Councils authorize their Chairman to
issue the warrant of arrest 1t is clear
that he could not legally issue it
without such authority. The warrant
is entitled Provisional Government
of the Hawaiian Islands," which by
the terms of the Proclamation con-
sists of the Executive and Advisory
Councils. 1t commands the Marshal
to produce J. G. NJ. Sheldon "before
the Executive and Advisory Councils
of the Provisional Government of the
Hawaiian Islands, at the Council
Chamber 1t states the ground of
arrest to be contempt of the said
Councils" 1t is signed by "Sanford
B. Dole, President and Chairman of
the Executive and Advisory Councils |
of the Provisional Government of the |
Hawaiian Islands," These express
sions show at least prima facie that |
the warrant was issued by President
Dole in his official capacity as chair
man of said Councils, and that the |
title attached to his signature is not
merely matter of description. He |
was, according to the practice of |
legislative assemblies the proper
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