Concurring Opinion of
Preston, J.I concur in the opinion delivered by the Chief Justice, and in the declaration that the Act in question is unconstitutional and therefore void, and have but little to add.
It was argued by the Attorney-General that as the offices of Third and Fourth Associate Justices were created by an Act of the Legislature, therefore the offices might be abolished by another Legislature repealing such law; and he also contended that such offices were held by virtue of such law only. But he conceded that if the offices were held by virtue of the law and under the Constitution, the law in question would be unconstitutional.
Article 65 of the Constitution of Kamehameha V. provides that the Supreme Court shall consist of a Chief Justice and not less than two Associate Justices; and that the Justices shall *210hold their offices during good behavior, subject to removal by impeachment, etc.
Article 66 provides that the tenure of office in the inferior courts shall be such as shall be defined by the law creating them.
The Legislature, by the law of 1886, having full authority to do so, enacted that the Supreme Court should consist of a Chief Justice and four Associate Justices.
Mr. Justice Bickerton was appointed Third Associate Justice under this Act on the -28th December, 1886, and thereupon became a Justice of the Supreme Court, the only Court established by the Constitution, and consequently held his office under the Section 65, and subject only to removal in terms of such section.
This Kingdom had obtained by the Constitution of Kamehameha III. and by that of Kamehameha .V. a tenure of office for the Justices of the Supreme Court free and independent from the control of the Crown and the Legislature — a position which had only been obtained in some other countries after years of agitation and struggling with the Crown; and it would be, in my opinion, a blow to the independence and integrity of the Justices of this Court, if it could be considered an open question as to the power of the Legislature to interfere with or in any way alter the tenure of their offices.
The new Constitution, in Article 65, adopts the then existing law, and by Article 81 declares that “ all officers of this Kingdom, at the time this Constitution shall take effect, shall have, hold and exercise all the power to them granted,” they being required to take an oath to support the Constitution within sixty days from its promulgation. It therefore seems to me that the position of Mr. Justice Bickerton was recognized by the Constitution.
I cannot, in conclusion, say more than was said by that great and learned Judge, Chief Justice Marshall, in the case of Marbury vs. Madison, 1 Cranch, 177 : “ The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it *211is on a level with ordinary legislative Acts, and, like other Acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.”
C. W. Ashford (Attorney-General), for the Crown. A. Rosa and F. M. Hatch, for defendant.The Act in question is, in my opinion, absolutely void.