Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-05-30
DECIDED ONCE AGAIN
COLLISION CASE DECREE
WlTHSTANDS ALL ATTACKS
The Supreme Court Defines the Power
Of Transition Period Judges
and Nature Of Circuit
Courts.

pened Wltnln rev weeks OF tnTee
years ago. The libelee's steamer
Claudine sunk the libellant's sailing
vessel. Upon the facts Circuit Judge
Silliman found for the libellants, but
resigned his judgeship afterward and
left the decree for Judge Davis to sign.
The libellee appealed to the Supreme
Court, which sustained the decree.
Wilder's Steamship Company had re-
course to the Federal courts without
any other result than having its appeal
denied right through TO the Supreme
Court of the United States. In the
latest opinion of the Territorial Su.
preme Court, written by Chief Justice
Frear, the following declarations of
law are made:
One Circuit Judge may sign a decree
in conformity with an opinion filed by
another Judge of the same circuit who
has gone out Of Office.
4 void decree is appealable.
II the Supreme Court entertains
without objection an appeal from a de-
cree signed without objection by ono
Circuit Judge upon the decision of an
other, its decree cannot afterwards be
set aside on motion as void, assuming
that the decree appealed from was i'm
properly signed by a different Judge
from the one who heard the case.
A statute is not repeaIed though eX-
pressed to be repealed by a later stat
ute, II the latter is void.
There cannot be de factO officer
unless there is de jure Office.
If there Is a de jure Office, there may
be a de facto officer, however invalid
his appointments.
There may be a de facto officer even
though the Office is already filled by =
de jure officer, II the latter is not in
possession Of the office.
There are not two offices in the case
of each Circuit Judge-that of Circuit
Court and that OF Circuit Judge in
Chambers. There is but one Office,
that of Circuit Judge, though certain
of his powers are exercised in Circuit
Court and others in chambers.
Regarding the appointing power OF
the President OF the Republic of Ha-
wall between annexation and the inau-
guration OF the Territory Of Hawaii, the
Court says:
The contention Is that the joint res
olution transferred all power OF ap
pointment to the President OF the Unit
ed States and SO repealed the Hawaiian
constitution and laws in so far as theI
gave to anyone the power to create
or I'LL judicial Office. and that, ever
! Conceding that there were vacancie.
/ in the present case, and that Act 67 o.
1898 was constitutional, there could b,
no color in the appointment Of anyon,
TO a judicial Office unless the appoint
ment came from the President OF tn,
United States. II would seem from tn,
/ authorities that color of appointment
or Of authority to appoint is not neces
sary to constitute one de faCto officer
although II may In certain cases adj
much to other evidence tending I,
show one to be de faCto officer. Blu
Joint resolution continued in force tn
I judicial powers OF Circuit Judges an,
also the Presidents civil power OF ap
pOintment, subject to the superior pow
er OF the President of the United State
in that respect, or at least that tn
latter's direction that the civil power
exercised by the officers of the Repub
lie of Hawaii as 1t existed just prior I,
the transfer OF sovereignty. continued
in the President of Hawaii such pow
/ ers of appointment as he had previous
| ly, subject OF course to the superior
power OF the President Of the United
States. Such direction by the Presi
dent of the United States was clearl!
within the power conferred upon hin
by the joint resolution. 1t does not fal
within the doctrine that delegated pow
err cannot be delegated. But after all
what difference does It make that tb,
President of Hawaii lacked the powel
TO make the appointments in queSuou
after annexation II he lacked II also
before annexation? In either case he
was without the power, and the valid
ity of the acts OF the appointees arc
unassailable now and here. not because
the appointments were valid, but be-
cause, assuming that the President did
not have even color OF authority u
appoint them, they were nevertheless
de facto officers in possession Of Dc
iure offices, and performing the lunc'
| tons of those Offices and, We may add
with the acquiescenCe OF all conCerrrd
In their supposed right to hold those
Offices and perform those functions
Justice Galbraith concurs in the con,
Clusion announced by the majority, hui
does not feel called upon to pass upon
the questions raised, as he says that
the llbelee had no right to urge The
motion five terms after the decree had
been filed. He suggests that the ques
tions raised are more academic than
practical, and concludes: The iGcts
four different courts and practically
the same conclusion was reached LS
each. Public policy and The interest,
OF justice demand that there SHOULD b.
an end to litigation"
Smith & Lewis were attorneys fol
the libellants and Kinney, Rallou
McClanahan for libelee.
Citiman-Yes, III be glad to run ou
and see you some time. What's YOU
number?
! bs-Why-er-the houses in