The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-06-09

| mentary parts of the journals pre-
sented? Such q construction as that
contended for would lead to endless
confusion and might unsettle every
enactment of the Legislature. They
had the certificates and the evidenre
and nothing else to go upon. A de-
cision was asked by the respondent
which would throw out laws right and
left. Nothing had been proved by
the evidence that there was any irreg-
ularity in the bill. To take fragment
ary records against the official certi-
ficates would unsettle the laws and
bring the Legislature into contempt.
UNcoNsTITUTIoNALITY ASSERT
| ED.
Mr.. Davis claimed the right to
speak besides Mr.. McClanahan, say
| ing they were employed by different
| parties The ayes and noes had been
shown, so there was nothing more to
be said on the point raised about the
journals.
The Act was unconstitutional and
void he went on to argue, because so
many sections conflicted with the Or
ganic Act, and his honor would have
to point out all of them In a well-con-
sidered decision.
Congress created the office of High
Sheriff in this Territory. giving that
official all of the powers formerly held
by the Marshal, but this Act abolish
ed the office.
Modification does not mean extin-
guishment," he declared in answer to
remark from the court.
Judge Gear said an official might be
relieved of some of his functions.
Not to the extent of extinguish-
ment," the attorney replied. mo,
they have not gone to the extent Of
saying there shall be no High Sheriff"
MEANING OF COUNTIES.
Judge Gear asked what Congress
ment when it said the Territorial Leg
islature might create counties.
Mr.. Davis said it meant the Legsla-
ture might provide county government,
but without contravening any of the
provisions of the Organic Act.
Cannot the Legislature decide what
officers are to govern the countless
the court asked.
"They can do it, but not in man.
ner to wipe out any of the provisions
of the Organic Act, for that would be
placing the authority of the Territori-
al Legislature over that of Congress"
Mr.. Davis responded. They could have
created counties without violating
the Organic Act They had no right to
impair, destroy or diminish anything
in the Organic Act. They could have
left the High Sheriff in the County
Act and placed him over the sheriffs
of the different counties elected by the
people.
FOUNDATION PRINCIPLE.
Judge Gear said the Organic Act pro-
vided a system of Territorial govern
ment. 1t also by empowering the Leg
islature to create counties gave the
Territory power to place the election
and control of county officers in the
hands of the people. He read from
Cooley and other authorities to show
that local self-government was at the
foundation of the entire American sys-
tenn. Local government was matter
of absolute right and the State could
not take it away.
Mr.. McClanahan called the courts at
tention to the "1nsular'' decisions re-
lative to the limitations on self-gov-
eminent in the territories.
Judge Gear knew those decisions.
but suggested that when the Organic
Act gave Hawaii the power to create
county government it meant that we
were to have counties with a republic
an form of government. The authori-
ties were overwhelming in holding that
local government was an inherent
right, one that did not require to be
placed in the constitution. "Cities
and counties" he proceeded to read,
"have the right to choose their own
officers" The court would construe
the Organic Act to mean that, not
withstanding it provided Territorial
government, in granting the Legisla-
ture power to create counties 1t grant
ed the principle of local self-govern-
ment.
WENT TOO FAR.
Mr.. Davis resumed his argument
with a burst like that of a released |
safety valve. There was no escape |
from the provisions of the Organic |
Act. 1t gave duties and functions to
certain officers which no court and no
Judge could take away. There was no
oligarchical rule in the placing of the
High Sheriff over the sheriffs Of coun-
ties-a man who could not be bribed
or cajoled. There were dark places
in the great centers of civilization,
ostensibly governed by the people
though they were. 1t was not all
streets of gold in the big cities. Look
at the corruption in Minneapolis, st.
Louis and Seattle. There was no need |
to abolish the office OF High Sheriff |
for the purposes of republican county
government, but on the contrary a |
palpable necessity for the retention of
such an official.
States had the rights Of self-govern-
ment inherent in them, but Mr.. Nc
Clanahan had sounded the keynote of
this question when he quoted the
"Insular" decisions. Could the Legis-
lature by modification take away that
provision of the Organic Act that no.
he In, iO