The Hawaiian gazette., 1901-06-11

ufNiri ~ fufNtAl NrhhuNHH 40 NOT
mount to irgai disability. H1nylers Inv
| Dictionary disability u terseiy denned ne
IAN incRpacity " action under the Law,
an incspacty 10 DO leral act" IN
nurrltts Law Dictionary u n defined ~
tho want ~ legal capacity" In iai
Mass tat u vas held that the power
~ disarptove measure may bc cxcr.
ciscd by IN. Governor. though he Ia q,
the time abscnt from the state, and the
| Lieutenant Governor Il temporarily act.
Ing" IN Carr Va. Wilson. ~ West Va.
i2g statute provided that In case OF
conviction or impeachment. failure 60
qualify. resignation or other disability OF
the Governor. the President OF the SEN
ate should act. II was held that the
non declaration OF the result of the cleo
ton was not disability OF the Govern.
or" The Court said, at Is not like In
sanity, conviction of the officer for crime.
continued absence, or other disability
connected with tho person OF the Gov
ernor" The Supreme Court OF New
York. ia People vs.. Ulster County. 80
Barbour. 4S6. says Disability implies
want OF power. not want of inclination.
II Is founded upon want OF authority
arising cut OF some circumstances or
other. Notwithstanding the presence OF
any amount or degree OF willingness or
ulSDOElllOn 10 act JuSAlNt SiNgtIt az
Meeker VS.. Nassault. 30 Sawyer, says,
Disability may arise out Of want OF suf-
fcient understanding, as idocy, lunacy,
infancy, or want of freedom Of Will, as
In the case of married women, and per-
sons under duress, or out of the policy OF
the law, as alienagc, where the alien is
an enemy, outlawry attainder, proemu-
nire, and the like. The disability Is
something pertaining to the person of the
party personal incapacity."
with the exception of one case in the
state of New Hampshire, l have been
unable to find any instance where mere
physical Illness has been held to consti-
tute disability. 1t seems to be every
where conceded that disability imports
only such loss of mental power. either
temporary or permanent, as prevents its
victim from comprehending the nature
or effect ut the act he is called upon to
perform. And even in the case of men,
tai weakness, when the disability ceases.
the executive functions revive in the
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,
ana at his pleasure dsrobe himself of the
upon the shoulders of the Secretary, to
resume il again If and whenever and 80
often as recuperated health may inspire
him to the performance Of official duty.
The powers and duties pertaining to tho
executive office cannot thus be tossed
like a shuttlecock beteween the battle
dores of an invalid's caprices.
But whatever the common law -efini
ton of the word disability" its defini
A. a
a peradventure by section IS OF the Or
ganc Act, which makes incapable of vot-
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 20 of the Organic Act must be CON-
strued in pari materia. 1t was held in
State VS.. Cornell, 90 Neb, $50, that
Special provisions in a statute relating
to particular subject matter must pre-
vail over general provisions in conflict
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 a very able opin-
ion given t6\the Legislature some days
since arrives at the conclusion that
Governor Dole was laboring under a dis
ability when Secretary Cooper assumed
the executive office, but with all due
spect to the learning and high official
position of the Attorney General, 1 find
myself unable to agree with him. The
New Jersey case Estate VS. Newark, p
New Jersey Law Reports, 19O, 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 un-
dertook to resume the duties of the Of
flee, and the court held that his resigna-
ton disabled him. OF the New Hamp-
shire case cited by the Attorney Genor-
al G6 N. H., 1922 in which it was held
that the illness of the Governor If sufii-
cient to disable him from performing the
duties of the office. constitutes a vacan-
cy therein, il may be said first that it is
IAN island spcCk of dissent in a broad
ocean OF contrary authority" and second
1t does not appear that there is any
statute or constitutional provision in New
defining specifically what
shall constitute disability" while Sec
ton Is Ct 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 nfor-
nation in the nature of quo warranto,
and an information for a quo warranto
TO try the title 10 an office can be main
tained only at the instance of the Gov
In Wallace VS.. Anderson 6 !
Wheaton, POI, It was held by the SUI
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 /.
~ a private individual, and without the /.
of the Government, II could /
not be sustained. whatever might be the .
light of the prosecutor or the person /
lot a..