The Hawaiian gazette., 1902-05-30

rallty Of the appointment Of Judge Sill
llman and Judge Davis by Governor
Dole before the establishment Of the
Territorial Government. although after
the annexation OF these Islands 90 the
United States" The laws under which
the appointments were made are then
set out, and discussed at some length,
the court assuming that acts % and 81
were unconstitutional. as the Judges
were 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,
section 81. the Circuit Courts may, per-
haps, be regarded as constitutional
courts" The court says that II there
Is "A de jure office there must be a de
facto officer. Continuing: IF the office
does not exist except as created by the
act in question, 1t cannot exis; at ALL
even de facto."
The court finds also that there Is
but the Circuit Judge, and not both A
Circuit Court and Judge in cham
bers, and that a de facto officer may be
in possession of the office while the de
jure officer Is in existence, although
not in possession OF the Office. II is
shown also that the regular Judges
acquesced in the acts of the special
Judges who filled the offices during
their Illness, and that the authority OF
these special Judges had never been
questioned.
In conclusion, Justice Freer goes into
the effect OF annexation upon this cas-,
quoting the joint resolution and the
correspondence between the Hawaiian
Government and the Secretary OF state
in reference to the appointing power
Concluding. he says:
The contention lie 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States and so repealed the Hawaiian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 tney
gave to anyone the power to create or
MI a judicial Office, and that, even con-
cediEg that there were vacancies i'm the
present case, and that Act 81 Of 1898
was constitutional, there could be no
color I'm 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
much to other evidence tending to
show one to be a de facto officer. But
aside from that, ii is clear that the
Joint resolution continued In force the
judicial powers of Circuit Judges and
also the Presidents civil power of APP
pointment, subject to the superior pow
or of the President of the United States
in that respect, or at least that the
latters direction that the civil powers
exercised by the officers Of the exist &
government in these islands should be
exercised by the officers of the Repub-
tic Of Hawaii as it existed just prior
to the transfer of sovereignty, continu-
ed in the President of Hawaii such
powers of appointment as he had pre-
vously. 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 de e.
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 If he lacked
IL also before annexation? In either
case he was without the power, and
the validity of the acts OF the APP
pointees are urassailable 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 We're
nevertheless de facto officers in pos
session OF de jure offices, and per-
corning the functions of those offices
and, we ray add. with the acnuies-
oence 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-
clusion announced by the majority, but
does not feel called upon to pass upon
the questions raised. as he says that
the llbellee had no rights to urge the
notion five terms after the decree had
been filed. He suggests that the ques-
tons raised are more academic than
practical, and concludes: THE facrs
IN this case have been passed upon by
four different courts and practically
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 fol
the libellants and Kinney. Ballou ant
Mechanism for libellee.