The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-06-11

Governor and the capacity of the Secre-
tary to act expires. There cannot be two
persons capable of exercising the func-
tons of Governor of the Territory of
Hawaii at the same time. The Gov
ernor cannot remain in the Territory,
and at his pleasure disrobe himself of the
mantle of executive power and place il
upon the shoulders of the Secretary to
resume it again If and whenever and so
often as recuperated health may inspire
him to the performance Of official duty.
The powers and duties pertaining to the
executive office cannot thus be tossed
like shuttleeock beteween the battle
dores of an invalid's caprices
But whatever the common law lefini-
ton of the word disability" its de1ini-
ton in Hawaii Territory is fixed beyond
a peradventure by section IS of the Or
ganic Act, which makes incapable of yot-
ing or holding office any idiot insane
person, person expelled from the Legis-
lature for giving or receiving brides, or
person convicted of felony. Sections Is
and 10 of the Organic Act must be con-
strued in pari materia. 1t was held in
State VS.. Cornell, So Neb., 55s that
Special provisions in statute relating
10 particular subject matter must pre-
vail over general provisions in conf1ict
herewith 1t is an elementary princi-
pie of law that the expires mention OF
one thing in statute implies the exclu-
sion of another thing. "Expressio unisis
est exclusio alterius, and Congress hav-
ing defined in section is of the Hawaiian
Organic Act what shall constitute dis
ability. no other definition can be made
1t has not escaped my notice that At
torney General Dole in very able opin-
ion given TO the Legislature some days
since arrives at the conclusion that
Governor Dole was laboring under q dis
ability when Secretary Cooper assumed
the executive Office. but with all due re-
spect to the learning and high official
position of the Attorney General, l find
myself unable to agree with him. The
New Jersey case State VS.. Newark 2
New Jersey Law Reports, $50. which he
cites in support of his opinion. does not
sustain his contention. In that case a
statute provided that in case of death
or disability of one or more commits
sioners it should be lawful TO supply the
place so vacated The statute did not
provide for a vacancy created by resig-
nation. A commissioner resigned and the
other commissioner supplied his place
The commissioner who had resigned I'M
oertook 10 resume the duties of the Of
fee. and the court held that his resigna-
tIcn disabled him. OF the New Hamp-
shire case cited by the Attorney Gener-
al 100 N H. 1o-3s III II " a. AAOt1
that the Illness of the Governor, If sufi-
J. cient to disable him from performing the
duties of the office, constitutes a yacan-
CIV therein It may be said first that il is
IAN island speck of dissent in broad
ocean of contrary authority" - and second
il does not appear that there is any
statute or constitutional provision In New
Hampshire defining specifically what
shall constitute disability while sec
ton Is of the Hawaiian Organic Act
makes such definition
!, Replying to your second question,
must say that the only legal process that
can be invoked against Secretary Cooper
TO compel him TO discontinue the exer-
else of executive functions is by infor-
nation in the nature of quo warranto,
and an information for q quo warranto
to try the title to an office can be main
tanned only at the instance of the Gov
ernment In Wallace VS.. Anderson,
Wheaton. 20i, it was held by the Su-
preme Court of the United States that "a
writ of quo warranto could not be main
tanned except at the instance OF the
] Government, and as this writ was issued
by private individual. and without the
authority of the Government, 1t could
not be sustained. whatever might be the
right of the prosecutor or the person
claiming TO exercise the office in ques-
tfon.''
/ Nv conclusions are.
! l. That Governor Sanford 3. Dole has
not been Iaboring under such disa ability
as disqualified him from performing the
duties OF his office.
| . That Secretary Henry E. Cooper has
oficiated as Acting Governor without
authority TO do so.
3. That the only way to judiciaily test
the question of the right Of Secretary
Cooper to act as Governor is by an IN
formation in the nature of quo warran-
to-
(. That such writ cannot issue except
upon information filed by the Attorney
General. and that IL the Attorney Gen.
eraI fails OF refuses to file such inforTna-
ton, there is no process kaown to the
law BY which he can be compelled TO &C
so.
1 / am. very respectfully yours.
THOMAS FITCH.
RESOLUTION OFFERED By THE Ju-
/ DIcIARY COMMITTEE
| Whereas. there is great doubt whether
Secretary Cooper has the right 10 edn-
I ciate as Acting Governor. and the exist
4 <osv- -r-ftr.