The Hawaiian gazette., 1901-06-11
Honolulu, r. H., June 10, 1901.
Judiciary Committee

Honolulu, r. H., June 10, 1901.
Hon. Jno. Emmeluth, Chairman Judiciary
Committee, House of Representa-
tives Territory of Hawaii.
Dear Sir: In discharge of the duties OF
my employment by you as special coun-
sci, l am required to answer the follow
ing questions, viz:
l. Has Hon. Henry f. Cooper, Secre-
tary of the Territory of Hawaii, since
May II, 1901, been lawfully entitled TO
ofiiciate as Acting Governor?
2. If not entitled to act as Acting
Governor, what legal remedy can be in
voked to compel him to cease exercising
executive functions?
The facts in the case, as communicated
to me, are that on May II, 1901, Governor
Sanford B. Dole left Honolulu and re-
paired to place within a few hours
journey by rail, where he remained about
three weeks when he returned to his
home here. He took this respite from
official duties under the advice of his
physician. 1t is not claimed that he was
suffering from any mental disorder. or
that his ailments were other than physi-
cal, or that he was permanently confin-
ed to his bed, or that he is unable now
to receive visitors at his home or appear
upon the streets. Since May II, 1901.
Secretary Henry Z. Cooper has been act
ing as Governor, claiming the right to
do so under the authority of section 70
OF the Act OF Congress of April 80. 1900.
to provide a government for the Terri
tory of Hawaii. The section referred to
provides: That in case of tho death.
removal, resignation or disability of the
Governor, or his absence from the Terri
tory the Secretary shall exercise all the
powers and perform all the duties Of
aahili-
ty or absence, or until another Governor
Is appointed and qualified"
There is no question in this case Of
death, removal, resignation or absence,
and the whole scope of the inquiry must
therefore be directed TO the proper defini-
ton in this connection of the word dis
ability"
The, rule of Interpretation of statutes
has been stated in many authorities, a
few of which / will cite: Words when
not defined by statute should receive
their common law definition" johnson
VS.. Farrell. Greenleaf. 300. Where
terms used in the common law are con-
tanned In q statute or the constitution
without an explanation of the sense in
which they are employed, they should
receive that construction which has been
affixed to them by the common law"
Carpenter VS., State, Howard Miss,
1881, Where "A statute uses a word
whose meaning is well known, and has a
definite sense at common law, the word
shall be expounded according and re-
stricted to that sense" (Buckner vs.. Real
Estate Bank, Ark. $500. Words used
In statute which have well known and
definite meaning In the law. are 10 be
given such meaning In constituting the
statute" Qarris vs.. Reynolds, 70 Califor-
mia, SD, when words are used by
Legislature In relation 10 matter or sub
ject which when used with reference 10
the same subject at the common law
have obtained a fixed and definite mean
ing. the presumption IL Irresistible that
they were Intended 10 be used IN their
common Law sense" (Expartehixent. %
Alabama. itS. Where any clause OF
statute IL free from ambiguity IL IL not
adsiSAbls 20 go out OF that clause. and
10 search Ia the act NJ .ATge for pensions
which might tend 10 render ambiguous
The plan terms OF the clause under inter
pfslaiioh" o. Fed Rep, G)
Tho common Law definition " the soFd
disability has been repeatedly given n
: bong llns u decisions. in phich II hAa