The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-04-04

] d. leAA ebS may OG COuElSOCt1l WIN lhAo
Proclamation; and also of an Advi-
sorry Council which shall consist of
fourteen members and that "Such
Advisory Council shall also have gen.
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 pro-
vides Section 81 that All Hawaiian
Laws and Constitutional principles
not inconsistent herewith shall con-
! tinue in force until further order of
| the Executive and AdvisoryC
Now, it is difficult to see how gem
eral legislative authority could be
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; and, since the
common law has been adopted as Ha-
waiian law so far as to fill up the gaps
which would otherwise exist in Ha-
waiian 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 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,
4l,nf rr-a,,1I l,o - 1afoat h.
poses of the Proclamation. Instru-
ments should, if possible be so con-
s'rued rs 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 a
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 (42) of the Constitution,
THE Cabinet hold seats eG O6iciO. in
the legislature Constituting these
Articles together, it has never been
doubted that the Cabinet had 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
legislative body. 1t 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-
ther 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
body consisting as we have seen, of the
Executive and Advisory Councils. 1t is
urged upon us that a legislative
body has no inherent power to punish
generally for cOntempts, and the case
of Kilbourn VS.. Thompson, 103 q. S.,
16S, is cited to sustain this view. In
this celebrated case it is made quite |
clear that the British House of Com |
mons traces its general authority to |
punish for contempts to its early con-
stitution as a 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 its own members for disorderly |
conduct, etc. !; also to decide contested |
elections. And the House of Repre-.
has the sole power of inn
parchment of government officers, |
and in these instances where the eX-
of witnesses is necessary to
the performance of these duties the
House may fine or imprison a contu-
macious witness. And the Court is
careful to say that they do not decide
that the power to punish person not |
a member for contempt does not exist
to enable either House to exercise /
their functions of legisla-
ton, but base their decision upon the
fact that the subject matter of inquiry |
upon which the plaintiff KilbOurn
was called to testify was judicial, and
not legislative.
The Congress of the United States
can only exercise such powers as are
granted by the Constitution all other
powers remain in the several States
composing the Union; and, in this
view it is doubtful if Congress could
enact a law authorizing itself /
to punish for contempt persons
not members of that body. But
in this country the legislative body,
that is, the Executive and Advisory
Ennnnilc cif4;,,.