The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-05-30
in reference to the appointing power.
Concluding, he says:

, in reference to the appointing power.
Concluding, he says:
The contention is that the joint reso-
luton transferred all power of apo. Mt
ment to the President OF the United
States and SO repealed the Hawaiian
constitution and laws in so far as ley
gave TO anyone the power to create or
fill a judicial office. and that. even con-
cediEg that there were vacancies in [ he
present case. and that Act 81 OF 1898
was constitutional. there could be no
color in the appointment OF anyone to
a judicial Office unless the appointment
came from the President of the United
States. 1t would seem from the au-
thorities that color OF appointment or
OF authority TO appoint is not neces-
sary to constitute one a de facto officer.
although il may in certain cases add
much To other evidence tending to
show one to be a de facto officer. But
aside from that, il is clear that the
joint resolution continued in force the
judicial powers OF Circuit Judges and
also the Presidents civil power OF ap-
pointment subject to the superior pow
er OF the President OF the United States
in that respect. or at least that the
latter's direction that the civil powers
exercised by the officers of the existing
government in these islands should be
exercised by the officers OF the Repub-
lie OF Hawaii as IL existed just prior
to the transfer of sovereignty. continu-
ed in the President OF Hawaii such
powers OF appointment as he had pre-
viously. subject of course TO the supe-
rior power Of the President OF the Uni
ted States. Such direction by the
President Of the United States was
clearly within the power conferred up
ON him by the joint resolution. 1t does
not fall within the doctrine that dele
gated power cannot be delegated. But
after all. what difference does it make
that the President OF Hawaii lacked the
power TO make the appointments in
question after annexation IL he lacked
IL also before annexation? In either
case he WAS without the power, and
the validity OF the acts OF the ap-
pOintees are unassailable now and here.
not because the appointments were
valid. but because. assuming that the
President did not have even color OF
authority to appoint them, they were
nevertheless de facto officers in pos
session OF de jure offices. and per-
forming the functions OF those offices
and. We may add. with the acquies-
cence OF all concerned in their suppos-
ed right to hold those offices and per-
form those functions
The motion TO vacate the decree is
denied.
Justice Galbraith concurs in the con-
announced by the majority, but
does not feel called upon to pass upon
the questions raised, as he says that
the libellee had no rights to urge the
motion five terms after the decree had |
been filed. He suggests that the ques-
tons raised are more academic than |
practical. and concludes: The facTs |
in this case have been passed upon By /
four different courts and practically 1
the same conclusion was reached by
each. Public policy and the interests
OF justice demand that there should be
an end to litigation
Smith and Lewis were attorneys for
the libellants and Kinney, Ballou and
for libellee.