The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-03-11

in effect. the creation Of a new court.
and this was without legal authority.
and contrary 10 the Hawaiian cOnstitu-
ton. as the law referred only 10 the
disability or absence OF the Supreme
Court Justice and not TO the Circuit
Judges. Congress only had the power
To create the office" concluded Mr.. Nc
Clanahan. and II delegated the power
OF appointment TO the President Of the
United States. and he could not dele
gate IL 10 the president OF the Republic
OF Hawaii. Governor Dole did not act
under this theory. but made the ap-
pointments by virtue OF the act OF
1888"
Mr. Lewis appearing for the plain
tiff. replied that the defendant was
barred from setting up this plea at this
time. and that the judicial authority
must needs be attacked at the original
proceeding. By the appeal from the
Supreme Court. he cOntended. the find
iugs OF that court had been accepted.
and when the mandate was made. any
further action was barred. He argued
that II the Judge was 10 be attacked IT
should have been at the original pro-
ceeding. and not at this time. He filed
also ap affidavit showing that Judge
Perry had been ~ with typhoid at the
time OF the appointment OF Davis. aud
consequently the appointment was
made because Of this disability. He
cOntended further that the Circuit
Court had certain powers. probate.
common Law. admiralty. etc, but that
these were not separate and distinct
courts. Consequently Governor Dole
did not create a new court by his ap-
pOintment Of Davis or Sillin'an. bu.
that they had the sane powers as did
the judges in whose places they were
acting.
Mt. Lewis construed the Newlands
resolution differently from Mr.. Nc
Clanahan. holding that certain powers
were vested in the President Of the
United States until such time as he
shall direct. and that this power was
delegated To Governor Dole. in n COM
munication from Secretary Day. in
which ii was said that these powers
were delegated To- the officers of the
Republic OF Hawaii according to the
laws. as they existed just prior to an
nexation." Under this provision the
was made. subject OF
course. to tine power of President Nc !
Kinley to remove all officers. or fill any
vacancy. He contended that il was
clearly not the intention OF Congress to
leave Hawaii in a state OF chaos, upon
an Office becoming vacant Until w dSn-
ington. twenty days distant. could be
with. but that temporary
power was vested in Governor Dole. (
Mr.. Lewis asked also for further time
to present some correspondence upon
the matter. between the Executive De- |
partment at Washington and Governor
Dole. He said that the matter was
carefully considered in the Executive
Council at the time. and the action /
taken was decided upon only after ma !
ture elaboration. Mr.. McClanahan re-
piled briefly. stating that the language
of the Newlands resolution could not
be construed as giving the President
power to delegate the appointment of
the judiciary to Governor. Dole. but
that such authority was vested only in /
the President of the United States. The
argument was concluded at the adj
journment of court, but Mr.. Lewis is
given until the close OF the present
term to file the official correspondence
upon the subject. Briefs are to be sub
united within five days after the close
OF the term.
THE KAMALO CASE.
The Supreme Court yesterday placed
the Kamaio case upon the calendar but
Chief Justice Frear announced that the
order was not final. and IL desired ar
euments could be presented later. TO
strike IL from the calendar.