The Hawaiian gazette., 1900-03-23
A ONE-S|OE
ARGUMENT
Supreme Court Legal
Aspect,
IS IT CONSTITUTIONAL 2
Attorney General COOper's Attitude
In the Matter Provokes Much
UnfavorabIe Comment.
(From Thursdays Daily.

For two days the question of the
legality Of the Supreme Court as at
present constituted has been argued be-
fore the Court itself. Associate Justices
Frear and whiting have been accom-
panied on the bench by Circuit Court
Judge Perry. AS is well known Chief
Justice Judd has been away from Ho-
nolulu for six or seven months. The
March term OF the Court was opened on
last Monday. Before any cases were
considered the constitutionality of the
bench as composed of hut two supreme
justices was attacked. Lawyers whose
clients had appeals before the Court
wanted assurance of the Courts right
to sit. Immense interests might be
jeopardized by doubt of the Courts
legality; land titles involved in some
of the suits to come up might be in
validated.
So petition for continuance of the
case of j. L. Bush ana others against
the Republic of Hawaii was made the
basis of argument. On Tuesday j. A.
Nagoon and |. M. Long, counsel for
praying that the case be not heard until
a Chief Justice be appointed. 1t was
alleged that the Court is not properly
constituted to hear cases; that A. Perry
is not legally qualified to sit on this
case; that heretofore, on the 2Sth day
of December, 1899, the Honorable A. F..
Judd, then Chief Justice of this Court,
duly filed with S. b. Dole, President of
this Republic, his written resignation
of the Chief Justiceship of this Hon
Orable Court, and that the said A. f.
Judd then and there ceased to be Chief
Justice of this Honorable Court.
Wherefore plaintiffs pray that this
Honorable Court decline to hear the
above entitled cause at this time and
until a chief justice shall be duly ap-
pointed and installed in office, and that
Hon. A. Perry may not sit in this case.
Attorney General Cooper as the legal
representative of the Hawaiian Repub-
lie was expected by the members of the
bar-and evidently by the Court-to act
his part in the hearing. 1t was nat
urally supposed that he would-as the
Governments case was on trial-defend
the Republic of Hawaii in the argument
brought by the lawyers for Bush and
others. Instead he has neglected his
client S-lue anu
has been conspicuously absent in the
controversy. Only when his presence
was demanded by the Supreme Court
Justices did he come into Court and
then only to shirk his duty with the
assertion that the Government intend
ed to take no stand in the matter but
that he would look up any authorities
wanted by the Court His striking in
difference in this case-of vital impor-
lance to the people of Hawaii-has
been differently interpreted. Cooper,
say many lawyers, is letting an ambi-
ton to wear the shoes of the Chief JUS
tice overcome his plain duty in the
premises; he is sacrificing the Govern
ment's interests for personal desires.
His position in the matter is mtenable.
President Dole and the leaders of the
Government hold that Chief Justice
Judd's resignation does not take effect
until his successor Is appointed, and
that under the Constitution Judge Per-
ry or another may fill up the Bench for
all purposes. Cooper, as the attorney
for the Government should defend this
stand; he should also as counsel for
the Republic of Hawaii defend his
client in the suit which Bush and others
have brought, and Of which the above
petition is a part. His failure to do
this has excited much unfavorable COM
ment even from those who contend for
the resignation of Judd. The bar be- |
1ieves that Cooper yearns to be the next
Chief Justice and that by letting the |
case go by default, he hopes for a de-
cision that Judd's seat is vacant and
therefore ready for another man.
On the opening of court yesterday |
m In f,11 tn
terday's Advertiser, were presented.
The affdavits were from President
Dole as to his receiving Chief Justice
Judds resignation; from A. f. Judd,
Jr., relative to his fathers Intentions,
and from Auditor General Austin as to
the Chief Justices salary having been
paid up to the present time.
Young Mr.. Judd was certain that his
father Intended and believed his resig-
nation to take effect only when his sue
cessor was appointed, and President
Dole had thorough understanding on
this point at the time the resignation
was handed him. This Is proved by
his letter to President Mckinley, as
follows:
Executive Chamber,
Honolulu, II. l., Dec. 2S, 1899.
Mr.. President: Yesterday / re- =
oeived Mr.. Judd's resignation as Chief
Justice of the Supreme Court of the
Hawaiian Islands.
while in the cases of other vacan-
cies in official positions of this govern
ment have followed the practice of
making appointments subject to your
have preferred in this mat
ter, considering the Importance of the
position and the prospect of an early
substitution of new form OF govern
ment for our present system, 10 refer
the matter to you for your Instructions
in case you should desire to give any
Judge Judd has been incapacitated
by illness from attending to his official
duties for good part of year and
has resigned, as l understand, because
Of that alone. His absence from judi
,ial work has. to some extent. been an T.