Dissenting Opinion, by
Dole, J.The plaintiff alleges in his petition that on -the first day of October, A. D. 1888, His Majesty Kalakaua “over his name and under the great seal of the Kingdom appointed and commissioned your petitioner one of the officers of his household, to wit, his Chamberlain, as will more fully and particularly appear by a copy of the said commission issued to him, hereto annexed, marked Exhibit A., and hereby expressly made a part hereof, and that your petitioner has held and does now hold the said office of His Majesty’s Chamberlain, subject and at all times obedient to the commands of His Majesty the King,” and that he has demanded of the respondeut the payment to him of the salary appropriated by the Legislature of 1888 for His Majesty’s Chamberlain, but that the respondent undutifully and unlawfully refused and still refuses to pay the same or any part thereof, “alleging as his reason that the Cabinet has not sanctioned the appointment of your petitioner to the office of Chamberlain as aforesaid, and for that said appointment does not meet with the approval of the Cabinet, all of which doth more fully appear by the copies of the correspondence which has passed between the said Samuel M. Damon, Minister of Finance, and your petitioner, hereunto annexed, marked Exhibit B, and made a part hereof.”
The plaintiff claims to be entitled to three thousand dollars for twelve months’ service as such Chamberlain, and prays for a writ of mandamus to compel the respondent to make payment thereof, or show cause for refusing.
Such an alternative writ was issued, ■ returnable on the 13th *31day of November, A. D. 1889, before Judd, C. J., in chambers.
The respondent in his answer gives three reasons why he cannot be legally called upon to pay the said salary, to wit:
First: That the case of Macfarlane vs. Green, 6 Hawn., 711, was a similar proceeding with the present, and for a portion of the identical sum of money claimed herein; and that in those proceedings it was adjudged that the petitioner had not shown himself entitled to the salary therein claimed, and that such judgment still stands as a decisive adjudication of the claim in the said cause.
Second: That the alleged appointment of the petitioner is invalid because it has not received the approval of His Majesty’s Ministers or any of them.
Third: That during the year next following such alleged appointment of the petitioner as Chamberlain he did not perform the duties of Chamberlain, being absent from the Kingdom during the greater part of such year, the said duties being performed by another.
The correspondence exhibited is occupied mainly with a discussion of the second and third grounds above set forth.
A hearing was had on the 21st day of November, A. D. 1889, before the Chief Justice, who reserved the questions raised for the consideration of the full Court.
In regard to the first ground of defense, i.e., that the judgment entered in the case of Geo. W. Macfarlane vs. William L. Green, Minister of Finance, has finally adjudicated a portion of the present claim : it. is clear to me that the position is untenable. An appeal was made from that decision to the Full Court, which appeal was abated by the resignation of William L. Green from the office of the Ministér of Finance. The effect of the termination of the case at that stage, i.e'., pending appeal, by abatement, could not be different from the effect of a similar disposition of the case while it was pending in Chambers, which would simply be a cessation of the proceedings without prejudice.
The second cause shown by the respondent why he cannot be legally called upon to pay the claim, i.e., that the alleged ap*32pointment is invalid without the approval of the Ministry, or any of them, which has not heen given, necessitates a consideration of the principles of our Government.
From the death of Kamehameha I. until the promulgation of the present Constitution, the executive authority of the Government was shared between the Sovereign and Kuhina Nui, or the Ministry. The office of Kuhina Nui became obsolete in 1864 with the abrogation of the Constitution of 1852. The executive power of the Sovereign was somewhat increased by the Constitution granted by Kamehameha V. in 1864,-for although it enacted that “no act of the King shall have any effect unless it be countersigned by a Minister,” it also provided in the same article that the Ministers “ shall be appointed and commissioned by the King, and hold office during His Majesty’s pleasure, subject to impeachment,” while there is no recognition in the previous Constitutions of any authority in the Sovereign to dismiss the Kuhina Nui. It also enacted that “ to the King belongs the executive power.” The enactment of ministerial responsibility in the Constitution of 1864 was never very definitely understood 'or interpreted, and the reason of this is in its inconsistency with the other provisions above quoted, that the Ministers shall hold office during the King’s pleasure, and “ to thé King belongs the executive power.” And yet there was in the administration of affairs during the reigns of Kamehameha V. and Lunalilo a general recognition of ministerial responsibility to the country, and of ministerial executive authority, and neither of these Sovereigns interpreted the constitutional provision that the Ministers should “hold office during His Majesty’s pleasure,” to mean that they might dismiss the Cabinet for private reasons.
In the present reign the principle of ministerial responsibility, thus feebly sanctioned by the fundamental law, has been gradually and steadily undermined until it finally ceased to exist under the encroachments of the Crown, and the whole executive authority became centered in the person of an irresponsible Sovereign. The revolution of 1887 was a public protest against this political status, and the Constitution of that year, which is now our fundamental law, was intended to remove *33the evil and to make its return impossible. This instrument marks a new departure in the administration of our Government ; by its preamble it states the reason of it to be that the old Constitution” contained “ many provisions subversive of civil rights and incompatible with enlightened constitutional government,” and that its promulgation was necessary to the maintenance of the Government. It enacts that the Ministers shall be removed by the King only upon a vote of want of confidence passed by the Legislature, or upon conviction of felony ; that the executive power is in the King and the Cabinet; that every sovereign act required by the Constitution shall .be performed only with the advice and consent of the Cabinet, except where the provision for such act dispenses therewith, and that all existing laws and parts of laws repugnant to its provisions are null and void. It ushered in a new political dispensation — a dispensation clearly and emphatically of public administration of affairs by responsible officers only. This principle of Government was ratified and extended — if that were possible — by the Legislature in a law passed on the eigth day of December, A.D. 1887, and approved by the King, which declares: “ Whereas, it is consistent with the spirit of the Constitutional Government of the Hawaiian Kingdom that the Sovereign shall act in a!l matters of State only by the advice and with the consent of his constitutional advisers ; therefore, be it enacted, etc.: Wherever by virtue of any statute now in force in this Kingdom, or which shall hereafter be in force therein, any act or thing is commanded or permitted to be done or performed by the King or the Sovereign, it shall, unless otherwise expressed, mean that such act or thing shall be done and performed by the Sovereign by and with the advice and consent of the Cabinet.”
Even with these clear and definite enactments of this principle of government, His Majesty has failed to realize and understand its meaning and to accept its full application to the administration of affairs. This attitude upon his part at at length culminated in an open breach of harmonious relations between the King and the Cabinet on the third day of August, A.D. 1889, when the Cabinet requested the opinion of the Jus*34tices of the Supreme Court upon the matter at issue under the following submission:
“ Honolulu, H. I., Aug. 3, 1889.
“ To the Hon. A. Francis Judd, Chief Justice Supreme Court.
“ Sir : The Cabinet desire to submit for your consideration the following statement of facts, and respectfully request the opinion of the Supreme Court upon the question hereinbelow stated:
“ Statement of Facts.
“ His Majesty the King claims the right to exercise his personal discretion in and concerning the performance of official executive duties of the Sovereign, such as making appointments requiring the Royal signature; appointment and removal of diplomatic and consular officers accredited by the Hawaiian Government abroad ; the acknowledgment of foreign diplomatic and consular representatives from abroad to the Hawaiian Kingdom ; the authority over and control of the military forces and munitions of war belonging to the Hawaiian Government, etc.
“ His assertion of and action in pursuance with this claim has now come to such a point that the orderly progress of the business of the Government is seriously interfered with and the preservation of the public peace menaced.
“Under these circumstances the Cabinet this day formulated and presented to His Majesty the following statement of principles, viz.:
“ ‘ Before going further, the Cabinet desire a through understanding with Your Majesty upon the following point, viz,: The Government in all its departments must be conducted by the Cabinet, who will be solely and absolutely responsible for such conduct. Your Majesty shall, in future, sign all documents and do all acts which under the laws or the Constitution require the signature or act of the Sovereign, when advised so to do by the Cabinet, the Cabinet being solely and absolutely responsible for any signature of any document or act so done or performed by their advice.’
*35“ The Cabinet advised His Majesty that such- statement of principles is in accordance with the Constitution, and that it was his duty to assent thereto.
“In reply to such advice by the Cabinet, His Majesty replied that he considered the request to consent to such statement of principles as uncalled for and insulting, and declined to assent thereto.
“ The Cabinet therefore respectfully request the opinion of the Supreme Court upon the following question, viz.:
“ Is the authority and responsibility of the Cabinet, as set forth in the above statement of principles, in accordance with and in pursuance of the Constitution or not ?”
The Justices of the Supreme Court, in their reply, unanimously and without qualification sustained the principles of responsible government in the following language: “ There can be no dual government. There can be no authority without responsibility. The King is without responsibility. The Constitution confers the responsibility of government upon the Cabinet; they therefore have the authority. With this in view, we are unanimously of opinion that the principles formulated by you and presented to His Majesty, above set forth, are in accordance with and in pursuance of the Constitution.” (7 Hawn., 784.)
This somewhat sweeping application of the principle under consideration allows no exception which is not allowed by the Constitution and laws. It tacitly repudiates the method of application of the 78th Article of the Constitution, which was adopted by the Court in the case of Everett vs. Baker (7 Hawn., 229), popularly known as the Veto Case. The Court in that case say: “Since the 78th Article (of the Constitution) contains the words ‘unless otherwise expressed’; therefore any act of the King which does not, by force of the article which defines the act, require the consent of the Cabinet, is excepted from the operation of the general rule laid down in Article 78.” If it is conceded that the reasoning of this part of that decision is untenable, an important step is gained toward a clear and consistent interpretation and application of the law upon this subject, and the meaning of the 78th Article of the Constitution may be *36confidently stated to be that there is no exception to the rule that every Sovereign act must be “ by and with the advice and consent of the Cabinet,” unless the law defining such act shall make it an exception.
This brings us down to the consideration of the question embraced in the second ground of defense to this application for a writ of mandamus. Is the appointment of the Chamberlain an act of the Sovereign which is required by our Constitution and laws, as interpreted by the Justices of the Supreme Court in their opinion of August 3rd, 1889, to be done by and with the consent of the Cabinet ? To answer this question it is necessary that the nature of the office of Chamberlain should be clearly understood. • Is it a public or private office? Does the Chamberlain in our government hold the same relation to His Majesty and to the public as does the King’s coachman or his cook, as was urged in the argument in this case?
I think there can be no question that the position is a public one and that the appointment is an official act, or, to bring it within the words of the opinion of the Supreme Court of August 3rd, 1889, is an executive act, for the following reasons: The office of Chamberlain has been a feature of this government almost from the time it became a constitutional monarchy. From 1846 to 1850 the duties and powers of the Chamberlain were prescribed by law. Since 1850 to the present time the office has been continued, and from the year 1864 has been recognized by every Legislature by an appropriation for the .salary of the incumbent. The office has during this period been closely patterned after the similar office of Lord Chamberlain of England. The description of a “royal chamberlain” in the Encyclopaedia Britannica correctly defines the office in both countries, as follows: “A royal chamberlain is an officer whose function is in general to attend on the person of the sovereign and regulate the etiquette of the Palace.” The Lord Chamberlain in England has some duties which are not imposed upon the Chamberlain of the Hawaiian Court, such as attending to the histrionic matters of the royal theatres; but, as the head of the royal household, upon whom devolves the regulation of *37court etiquette, the issuing of royal invitations to receptions and parties, and the arranging of presentations at court, his functions correspond minutely with those of the office in this country. With this showing it cannot be denied that the office is a public one, that it is authorized by law, that the character of its incumbent and the manner of his performance of the duties of the office concern the relations of the government at home and abroad, and may affect the international reputation and standing of the country. The Chamberlain is not the servant of the King, or his private secretary or his business agent; he is distinctly his official attendant, the person through whom he meets the public in his capacity as Sovereign.
If this is so, can it he contended that no authority or responsibility is involved in the appointment of so important an officer? And if there is authority there is responsibility. “There can be no authority without responsibility. The King is without responsibility. The Constitution confers the responsibility of government upon the Cabinet; they therefore have the authority.” (Opinion of the Supreme Court, August 3d, 1889.)
This national importance of the office of Chamberlain as above set forth brings the appointment within the law above quoted, passed by the Legislature on the 8th day of December, A. D. 1887, which provides that “ whereas it is consistent with the spirit of the constitutional government of the Hawaiian Kingdom that the Sovereign shall act in matters of State only by the advice and with the consent of his constitutional advisers,” the King shall perform those acts which he is authorized or permitted to do by virtue of the laws, “by and with the advice and consent of the Cabinet,” unless the law provides otherwise. It can hardly be argued that the appointment of the Chamberlain is not a “matter of state.”
An executive act is an act that carries out or executes the law. The law in providing for the salary of the Chamberlain, a public officer, provides by necessary implication for his appointment. It thus becomes strictly an executive act, like the appointment to any other statutory office.
The manner of appointment to the office of Chamberlain, pre*38vious to the revolution of 1887, has no bearing upon this issue, and no force by way of precedent, for the status of the Sovereign was radically changed by that revolution, as is shown above, and modified upon this very .point of his authority in making appointments to office, which authority — or what there was of it — was entirely swept away, except as to the appointment of the Cabinet. As a matter of fact, however, for a period of fourteen years or more the Chamberlain has been appointed by royal commission under the great seal of the Kingdom, which would prima facie characterize such appointment as an executive act. It has also been the practice, to some extent, under the old regime to have such commissions countersigned by a Minister.
I think it may be accepted as an irresistible conclusion arising from the circumstances and enactments of the late revolutionary movement, that the King has no powers except those granted him by the Constitution. The executive power is there placed in the hands of the King and the Cabinet, and there is no remainder or surplus of executive power that is given to him to use independently, unless the appointment of the Cabinet might be so regarded.
These conclusions of law are strongly supported by the conclusions of public policy. For instance, if the position should be filled by a person who paid no attention to his official duties, or absented himself entirely from the country, or who attended to his duties in an incapable or scandalous manner, there would be no remedy unless the responsible Cabinet had the control of the office, except to wait for the succeeding session of the Legislature, which might be more than a year away.
It is a signficant fact with a direct bearing upon this question, that in England the Lord Chamberlain is appointed by the Cabinet and changes with the administration. This is because it has been found by experience that it is better for the harmonious administration of affairs that an officer holding a position so intimate, and so full of opportunity of acquiring influence with the Crown, should be in political accord with the ministry. If this reason for ministerial control of the office is *39good in England, it is a matter for serious consideration whether it is not also good here. But this is an argument from policy which I do not rely upon, but call attention to the harmony that exists, as it appears to me, between the conclusions of law and the policy arising from this question.
As to the third ground of defense, i. e., that the petitioner has not performed the duties of the office, and has been absent from the country during a large part of the time for which he claims to be paid, I feel, as I have suggested above, that the best remedy for such a state of things is to dismiss the official so failing to perform. But it seems to me that a person holding an office is entitled to the pay of the office in'full, so long as he remains in it. To admit that the Minister of Finance has the discretion to call an official to account for lost time or incompetent performance, and investigate his official record with a view to pay him only for work actually performed, and to discount his salary accordingly, would place upon his shoulders, in addition to his other responsibilities, a duty so onerous and uncertain and easily capable of abuse as to render its performance well-nigh impracticable, and its attempt inconsistent with public policy. The obvious remedy for official dereliction is dismissal, which is one of the arguments before stated for the necessity of a responsible appointing power. A decrease by the executive of the salary of an official, fixed by law, would be in the nature of an interference with the legislation, the Legislature being the sole judge of the value to the government of the work pertaining to any office.
I feel, however, that when a person who is absent from the country is appointed to the office of Chamberlain, the duties of which require personal attendance upon the Sovereign and the presence of the incumbent at the Palace or the royal court, it might well be considered that he should not be regarded as having accepted the appointment and qualified himself as Chamberlain until he should have put in an appearance at the place where the duties were to be performed, and consequently that his pay should not begin to run until he had shown his bona fide acceptance of the position by his presence at the post *40of duty. My mind is, however, not fully made up upon this point.
Upon the second ground, therefore, of the defense, I am convinced that the petitioner not having shown that his alleged appointment has been made with the approval of the Cabinet, he has failed to prove that he has been legally appointed to the office of Chamberlain; he is therefore not entitled to the salary claimed, and his application for a peremptory writ of mandamus should be refused.