The Hawaiian gazette., 1902-05-30
HAD POWER
TO APPOINT.
TheSupremeCourt
UphoIds Acts
of Dole.

NNNiNlANI AANhA afNNfNNA AfhA'N w wv
ton q vacate the decree In the case VI
John " Hind et al W. Wilders Steam.
ship CO. Questions of vital importance
TO Hawaii were settled by the decision,
in which u was held that the acts "
President Dole In appointing Judges
Silliman ana Davis 10 temporarily act
were legal and binding. without the
approval Of the President Of the United
states. A general attack was made
by the attorneys for the wilder COM
pany upon the legality Of acts per-
formed by Governor Dole just prior TO
annexation, but the Supreme Court
oyerruled the contention and upheld
the Governor. Several other import
ant questions which have been bobbing
up in the courts recently are also de-
cided, among them being that one
Judge may sign decree in conformity
with an opinion filed by another Judge
in the same circuit, and that there are
not two offices In the case Of each Cir
cult Judge-that of Circuit Court and
that Of Circuit Judge In chambers, but
only that of Circuit Judge.
The case upon which these questions
have been decided has been through a
long and tortuous path of litigation.
The suit grew out of the collision
about two years ago, I'm which
the William Carson was sunk by
the steamer Claudne. The case was
heard by the Circuit Court. which held
for the plaintiff and Judge Silliman
gave the order which Davis signed. ON
appeal to the Supreme Court the lower
court was sustained, and the Circuit
Court of Appeals sustained the Ha-
waiian Supreme Court I'm refusing to
allow an appeal. The United States
Supreme Court did likewise, and the
United States District Court here also
found for the plaintiff, which was sus-
talned by the Circuit Court Of Appeals
The decision of the court is written
by Chief Justice Frear and Judge CAL
braith writes a brief concurring opin-
ion. The following is the syllabus
which settles the important law points:
Semble, that one Circuit Judge may
sign a decree in conformity with an
opinion flied by another judge of the
same circuit who has gone out Of Of
fee.
Semble, that a void decree is appeal
able.
If 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, It's decree cannot afterwards be
set aside on motion as void assuming
that the decree appealed from was inn
properly signed by n different judge
from the one who heard the case.
a statute is not repealed though eX-
pressed to be repealed by later stat
ute, II the latter is void.
There cannot be de faCtO officer
unless there IL a de jure office.
If there is a de jure office, there may
be de facto officer, however invalid
his appointment.
There may be a de facto officer even
though the office Is already filled by a
de jure officer, If 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 h 8
powers are exercised in Circuit Court
and others in chambers.
Acts 20 and g. 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 pc son
to perform the duties of "A 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
latters Illness. The special judges per-
formed the duties OF the offices with
the acquiescence OF all concerned dur
ing the illness of the regular judges.
one OF the special judges heard a case
in admiralty and filed his decision. The
other signed decree in conform y
with that decision. The case was APP
peqled and a decree entered in the Su-
preme Court slightly modifying tnat
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 g. were
unconstitutional because the appoint
ments therein provided for were not
to be made with the approval of the
Senate. that DEGREES absolutely voii
may be set aside at terms subsequent
to those at which they are re ID ed
and that the consent of the parties can
not invest persons with judicial power
stil the special judges were judg, d
facto and their DEGREES cannot be tau:
attacked collaterally
The result would be the same II. as
Stunning those Acts to have been vail,
before the annexation OF these island
to the United States. they were rem
dered invalid by the Joint resolution o
annexation (after which the appoint
ments were made and DEGREES ren
6ered), and if such power Of appoint
ment as the President OF Hawa / haC
before annexation was not continued IL
him afterwards either by the Joint res
olution or by the direction OF the Pres
ident of the United States although II
our opinion such power was so contin
ued in him.
semble, that color OF appointment o
OF authority to appoint Is not neces
sary to constitute one a de facto Of
ficcr,
The court says that the question G
the admiralty jurisdiction of the Terri
torial courts is abandoned In view G
the decisions OF the United States Cir
cult and Supreme Courts. The fact tina
the decree In this case had not bee
signed by the Judge who rendered tn
opinion is held To be OF no effect. an