The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1904-10-15

tho rIrH DifrmO tbe LEGISLATURE would
sopm to bo without power t0 ada i0.
tha number Oft iudeea bob provided bt|
Courrpas A r,dupt0 Hd Bhsufdum
arises DO ths power off tho Legislature Col
ada to the number of judges Boo admit.
ted. ln that the corroiltlvp power must
also bc conceded to exist of rcducIur
the number of judges. whereby o. judi.
clal officer appointed boy the president
and confirmed by the senate OF the
United states would be- legislated out
of Office by the territorial legislature.
Furthermore. Section so of the or
ganic Act prescribes tenure OF office
for the circuit judges and provides that.
they shall be appointed by the Presi-
dent OF the United States. 1t seems TO.
me evident that Congress did not In
tend to place IL within the power Of a
Territorial Legislature TO prescribe a
duty TO be performed by the President.
Said Section also provides that the
Presidential appointment shall be made
by and with the advice and consent OF
the Senate and It seems quite as un-
vided that a Territorial legislature IT.
self in part the creature of the Senate,
might establish offices which it will
become the duty Of the Senate to as
sist in filling. II the statute can be so
interpreted it Will, so far as my knowl-
edge goes, be the only instance in which
Congress has permitted a Territorial
legislature to lay out duties to be per-
formed by the President and Senate
of the United States.
Judges appointed by the President
with the cooperation of the Senate are
Constitutional officers, as determined
by the Supreme Court in the Germaine
case (99 U. S., 5O8,) under Article II,
Section 2, of the Constitution. Said
Section prescribes, in Paragraph 2, the
officers which shall be so appointed
and includes certain named officers
and all other officers Of the United
States whose appointments are not
herein otherwise provided for al,
which shall be established by law
The law referred to evidently means
laws passed by Congress and not laws
passed by Territorial Legislatures. IT,
therefore, the office of additional Judge
is established by act of the legislature
! Of Hawaii there would seem to be no
authority in the President and Senate
| to fill the office thus created. So the
| Office must remain vacant or be file
! by some other method of appointment
! if possible, in view of the provision of
! Section 80 of the Organic Act above
| quoted.
! Furthermore. the Act of the Terri
! torial Legislature, if valid, makes a
| draft on the Treasury of the United
! States by creating an office the COM
pensation attached to which is paid
| from that Treasury. The salaries OF
circuit judges holding Presidential APP
! pointments are, under Section % of the
Organic Act, paid by the customary
Treasury warrants. The Territorial
Act made no provision for the salary
of an additional judge and, under the
Organic Act, the Legislature would
have had no authority to make such
provision had it so attempted. If the
attempted creation of this additions
office by the Territorial Legislature was
effective, it follows that the incumbent
cannot be paid except by money in tn,
Treasury of the United States, duly APP
propriated by Congress. The office
would, therefore, remain in allegiance
until Congress made such appropriation
unless there be some fund in the Trea-
sury which could be used for that pur.
pose. If there is such a fund, the
Territorial Legislature might establish
any number Of similar offices, each
constituting a draft upon the treasury
If there is no such fund. the actual es.
adjustment of the office must neces
sarily await Congressional action
which would be much more properly
taken in the usual course of such ac
ton than as a supplement to a terrific
rial act.
For the reasons above stated / be
lieve the act of the Territorial Legisla
ture providing for an additional judge
however great the necessity thereto
may be, was ineffective for lack 0
power in the Legislature. l ought t,
say, however, that the Honorable Jus
tees of the Supreme Court of the Ter
: ritory We're consulted at the time tn
: proposed legislation was pending an,
unotiiciaHy expressed an opinion con
trary to the views entertained by me
as above set forth.
: Very respectfully,
"A. S. HUMPHREYS.