Ahlo v. Smith

8 Haw. 420 | Haw. | 1892

Opinion op the Court, by

Dole, J.

The petitioner claims the right to vote on the ground that he had such right previous to the present Constitution, and that there is nothing in this Constitution which destroys that right. The constitutional provision for the voting privilege limits it to residents of Hawaiian, American or European birth or descent. (Articles 59, 62). This is a radical change from the provision for voting in the Constitution of 1864, which limits the privilege to subjects (Article 62), and which was annulled by the promulgation of the present Constitution, which substituted the race requirement for the old condition of citizenship. (Preamble of the Constitution.) But Section 432 of the Civil Code provides that every naturalized foreigner shall be entitled to the rights, privileges and immunities of a Hawaiian subject. This antedates the present Constitution. But what are the rights of the Hawaiian subject as to voting? Are they not so merged into the new provisions that now he votes — not as a Hawaiian subject at all, but solely as a resident Hawaiian, American or European by birth or descent? If this may be answered in the affirmative, as we think it may, the 432d Section of the Civil Code stands untouched by the Constitution, and the petitioner, by virtue of his naturalization, is entitled to the rights, privileges and immunities of a Hawaiian subject, but voting is not one of them, unless the additional race condition exists.

A Constitution which abrogates the previous fundamental law necessarily repeals all existing statutes inconsistent with itself. It may even be said that it repeals all statute law existing at the time of its promulgation ; whence the necessity of re-enacting all such laws as are not repugnant to it. (Const. Art. 79). When such a Constitution takes effect, it is a new departure in the government of the country, inasmuch as it states anew the principles upon which the government is to be administered, and rearranges the distributions and limitations of sovereign powers. What is not changed is re-affirmed. The new statement of the fundamental law takes the place of the old.

Under this change of voting condition, from citizenship to race status, the plaintiff has lost his privilege, whether intentionally or not it does not concern this issue, though, upon general principles, it is to be regretted. The voting right is a privilege rather than a right, and a duty rather than a privilege. Even if it is regarded as a right, the loss of it through the promulgation of a new Constitution is by “ due process of law” of the most pronounced character.

A. S. Hartwell, for the petitioner. Attorney-General Whiting, for the respondents.

The plaintiff’s counsel refers in his brief to the Opinion of the Justices of the Supreme Court, in reply to questions addressed them by the Cabinet in regard to the voting qualifications of one Kekaula, who'had been convicted of felonious branding of cattle in 1882, in support of his position in this case. It seems to us that that opinion is based upon different principles than are raised in this case. The circumstances were also different.

Kekaula had been convicted of an offense, under the old Constitution, which did not deprive him of his civil rights, as it would have done under the present Constitution, which found him in the enjoyment of these rights. The Justices consider that the provision of Article 73 of the Constitution, which deprives one who “shall have been convicted of” felonious branding of cattle of his civil rights, did not apply to Kekaula for two reasons, i.e., because the language “ shall have been convicted” denotes future convictions, and because the deprivation of civil rights by the present constitutional enactment for a previous offense, committed under laws which did not deprive the offender of civil rights, would distinctly characterize it as ex post facto legislation, and a construction involving such a result should not be adopted, even of a constitutional provision, unless the words distinctly require it, as they do not in that case. (See said Opinion, post, Appendix.)

We do not therefore see that that case is a precedent or a guide in any way to this.

We find that the petitioner is not entitled to vote, his previous right having been annulled by the Constitution, and therefore dismiss the complaint.