The Hawaiian gazette., 1915-12-28
Could Not Hold Federal Office
During Term As Legislator
Of Territory
POINT HAS BEEN SETTLED
BY WASHINGTON OPINION
Fight For District Attorneyship
Futile Unless Attorney-Gen-
eraI Reverses Finding

Unless the opinion Of the attorney
general of the United States has been
changed since last February, the ,eandi-
cacy of James +. Coke for the position
of United States district attorney is
futile one. AT that time, when he
was prominently mentioned as prob.
able successor to Robert W. Breckons,
the retiring incumbent Of the attor.
mey's Office, and d. +. Metzger was
supposed to be slated to succeed e. A.
Mott Smith, as secretary of the Terri.
tory, the claim was raised that both
were ineligible for the Offices on ac-
count of their positions as Members Of
the territorial senate.
Governor Pinkham asked for rul
ing from the department of justice on
the matter and received an op MON
which had the apr oval of the interior
departmr mt as well as being the opin on
of the head of the department of jus.
tice, which is the department under
which the appointment to the fe leGal
positions would come.
Both Absent Prom Territory
/ Coke and Metzger are both absent
| from the Territory The latter has sig,
nified his intention of not returning, at
least for a long time. The terms of
office for which they were elected have
not as yet expired and in case of the
calling Of the legislature in special SEES
sion these two men would be called
upon to be present. Shou they resign
| then special election would have to
be held to Gil their places but they,
| or at least Coke, who is said to be
seeking q federal job, would be ineligi
bic until the day Of the next election
which comes in November next.
Following is a copy of the letter re
ceived last February by Governor Pink
ham from Preston C. West, assistant
attorney general of the United Safes
which is approved by Adolph c. Mill
or, assistant to the secretary of the in.
terror Of the United States:
| '"T am in receipt Of request from the
assistant to the secretary for opinion
as to whether,' under See ion 10 of tn
| act Uf Congress approved April 80
1900 ,(Si Stat, 141), an act to provid,
La government for the Territory of Ha
| wall, members of the ter itoriaI legis
| lature are ineligible to appointment
I a federal territorial office, reference be
ing had particularly to the Office o.
lboSIobdFy Ol tHS leIIltOTy. 1nS uucS
tion was ProPouIded by the Gov,rno
E2f the Territory, who reque 5ted reply
No legislator Eligible
Il la Section 10 Of the act of April 80
1900 supra, is as. follows. ~.
/ That no member Of the le?islatur
shall, during the term for which he i.
elected, be appointed Or elected to an,
office or the Territory of Hawaii
80 Section II Of the act provides:
"Tbat no person holding office in o.
Under or by authority Of the govern
mehtt of the United States or of tn,
Territory Of Hawaii shall be eligible
| 10. election OF the legislature, or t.
hold the position of 2 member of thu
or federal Office E''
"Presumably, those who believe that
section 10 does not ihhibit the appoint
meIft or election of a member of the
territorial legislature to an office in tho
lgovernment of the Territory are OF
opinion that it relates wholly to such
local Offices as are filled by election i
the Territory or by what may be term
ed local appointment, ie., by the Gov
ernor or other territorial officials and
does not therefore apply to what may
be termed federal territorial Offices
such as are filed under appointment b!
the President of the United States.
"m determining the scope and in
tent of the provision of law in ques
ton the succeeding provision contained
in section II becomes important. 1t
expressly provides that a person hold
ing Office in the Territory, whether un
der or by authority of the Territory
or of the United States government
shall not be eligible to election to thu
legislature or to be a member of said
Legislature while holding the territorial
or federal office. .+.%
Accords With Good Policy
= "Read and considered together, the
intent and effect Of said sections ap
pear to prohibiteA person from at Tho
same time holding an appointive Of
elective Office and; serving as a mem
Der of the territorial Legislature. This
view is in accord with sound public
policy and with good administratio ton
As secti0lS II prohibits both the fed
eFal and local oifice.holders from serv
ing IN the legislature, it is fair to as
sumo that section 10 was intended tc
and does prohibit the appointment OIL
election of member of the legislature
during the term for which he was elect
ed to either a local or federal office
| 81 have therefore TO state that, il
my opinion, member OF the legisla
tnre of Hawaii is during the term fOl
which he was elected ineligible to ap
pointment to territorial or federal Of
fees I'M the Territory, including the Of
fee Of secretary of the TeTfitOry.'