The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-05-30

{ Draltn writes q DFlet COncurrinE Opil
! lon. The following is the syllabus
which settles the important law points
SembIe. that one Circuit Judge may
sign n decree in conformity with ar
opinion filed by another judge OF the
same circuit who has gone out OF Of
fee.
Semble. that void decree is appeal
able.
II the Supreme Court entertains with
out objection an appeal from a decree
signed without objection by one Cir
cult 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 n different judge
from the one who heard the case.
\ statute Is not repealed though ex-
pressed to be repealed by a later stat
| ute. IL the latter Is void.
There cannot be n de facto officer
unless there Is n de jure Office.
II there Is n de ture office. there may
be n de facto officer. however invalid
his appointment.
There may be n de facto officer even
though the office Is already filled by a
de jure officer. IL 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.
Acts % and 81 OF the laws OF 1898. the
latter purporting to repeal the former.
each provided for the appointment by
the President Of the Republic. without
the consent OF the Senate. OF n person
to perform the duties OF Circuit
Judge during the latter's temporary
disability or absence. The President
appointed certain persons to act In the
places OF the First and Second Circuit
Judges OF the First Circuit during the
latter's Illness. The special judges per-
the acquiescence OF all concerned dur
ing the Illness OF the regular judges.
One OF the special judges heard Il case
in admiralty and filed his decision. The
other signed a decree in conformity
with that decision. The case was ap-
pealed and decree entered in the SUI
prsmc Court slightly modifying that
OF the lower court. Five terms after
wards a motion was made TO set aside
the decree OF the Supreme Court on the
ground that the decision and decree OF
the special judges were void. Held.
Assuming that Acts % and 81 were
unconstitutional because the appoint
ments therein provided for were not
TO be made with the approval of the
Senate. that DEGREES absolutely void
Elly ne SGT dSlut at Subsequent
To those at which they are rendered.
and that the consent OF the parties can
not invest persons with judicial power.
still the special judges were judges de
facto and their DEGREES cannot be thus
attacked collaterally.
The result would be the same III. as
Stunning those Acts to have been valid
before the annexation OF these islands
to the United States. they were rem
dered invalid by the joint resolution OF
(after which the appoint
ments were made and DEGREES rem
and II such power of appoint
ment as the President OF Hawaii had
before annexation was not continued in
him afterwards either by the joint res
olution or by the direction OF the Pres
ident OF the United States. although in
our opinion such power was so contin-
ued in him.
Semble. that color OF appointment or
Of authority TO appoint IL not neces-
sary TO constitute one q de facto Of
ficcr.
The court says that the question OF
the admiralty Jurisdiction of the Terri
torIal courts Is abandoned in view OF
the decisions OF the United States Cir
cult and Supreme Courts. The fact that
the decree in this case had not been !
signed by the Judge who rendered the |
opinion is held to be Of no effect. ana !
In any event, the court holds. that II
Is now too late TO raise such a ques- |
ton. The decision OF the Supreme |
Court on appeal Is held to be binding. !
the facts in connection with |
the lower courts decree.
The court goes at length into the le-
saiity OF the appointment OF Judge Sill |
Imam and Judge Davis by Governor |
Dole before the establishment OF the /
Territorial Government. although after l
he annexation OF these Islands TO the !
United States" The laws under which I
he appointments were made are then
set out. and discussed at some length. I
he court assuming that acts % and ca
we're unconstitutional. as the Judges
we're to be appointed by the President
Without the approval OF the Senate.
In this connection the court also says:
AT present under the Organic Act.
ection 81. the Circuit Courts may. per-
iaps. be regarded az constitutional
'ourts." The court says that IL there
5 de jure office there must be a de
acto officer. Continuing: IF the office
Ices not exist except as created by the
ct in question, IL cannot exist at all,
ven de facto."
The court finds also that there is
tut the Circuit Judge. and not both
'lrcuit Court and n Judge in cham
ers. and that n de facto officer may be
\ possession OF the office while the de
ure officer Is in existence. although
OF In possession OF the Office. 1t l.
hown also that the regular Judges
cquiesced in the acts OF the special
judges who filed the Offices during
heir illness. and that the authority OF
rese special Judges had never been
uestioned.
In conclusion, Justice Frear goes into {
tc effect OF annexation upon this cas-. 2
ucting the joint resolution and the .