OPINION OF
KEMP, C. J.
(Le Baron, J., concurring in part and dissenting in part.)
A vacancy in the office of associate justice of this court was created on July 11, 1949, when Associate Justice Cristy died.
The appellees in the above-entitled and numbered cause, having theretofore moved that the appeal be dismissed, filed two motions. In the first they moved that the court, acting by the chief justice and the associate justice thereof, enter an order disposing of the motion to dismiss appeal. In the second they moved that, in the event the foregoing motion be denied, the court enter an order disposing of the motion to dismiss appeal, said order to be entered by the court, acting by the chief justice, the associate justice and a circuit judge thereunto authorized by the written consent of the chief justice and the associate justice, pursuant to the provisions of section 9610 of the Revised Laws of Hawaii 1945.
The statutes involved are section 82 of the HaAvaiian Organic Act and section 9610 of the Revised LaAVs of IlaAvaii 1945, as folloAVs:
“Sec. 82. Supreme court. That the supreme court shall consist of a chief justice and tAVo associate justices, Avho shall be citizens of the Territory of HaAvaii and shall be appointed by the President of the United States, by and with the advice and consent of the Senate of the United States, and may be removed by the President; ProAdded, however, That in case of the disqualification or absence of any justice thereof, in any cause pending before the court, on the trial and determination of said cause his place shall be filled as provided by law.”
“Sec. 9610. Full court; substitute justices. Parties to causes pending before the supreme court shall be entitled to a hearing before all of the justices thereof, and may not be compelled to go to trial before less than the full number thereof; provided, however, that if any of the justices of the supreme court shall be disqualified from sitting in any cause pending before the supreme court, or shall be unable to attend from sickness, accident, absence, or any other reason, his or their place or places for the trial and determination of such cause shall be filled by one or more of the circuit judges who has or have had no connection with the cause either as counsel or in an official capacity, and who is or are not otherwise disqualified, and AAdio is or are not unable to attend from sickness, accident, absence, or any other reason, thereunto authorized by the written consent of the remaining justice or justices.”
Section 82 of the Hawaiian Organic Act is, with immaterial variations, a duplication of section 1 of article 83 of the constitution of the Republic of Hawaii, promulgated July 3, 1894. Section 9610 of the Revised Laws of HaAvaii 1945 is, with immaterial variations, a duplica
tion of section 1170 of Hawaii Civil Laws 1897, which was section 56 of chapter 57, Session Laws of Hawaii 1892, approved November 25, 1892 and retained as the law of the Republic of Hawaii by section 1 of article 92 of the constitution of 1894.
The movants state their theory as follows:
1. Under section 82 of the Organic Act and section 9610 of the Revised Laws of Hawaii 1945, only a quorum of the justices is required since the consideration of the pending motion to dismiss is not either a “trial” or “determination” of the cause within the meaning of section 9610.
2. Assuming that either the Organic Act or section 9610 requires the matter to be considered by a court consisting of three justices, there is full statutory authority to designate a third judge.
The petitioner-appellant states that the questions presented are:
1. Can the word “absence” in section 82 of the Hawaiian Organic Act and section 9610 of the Revised Laws of Hawaii 1945, be construed to include the meaning “death”?
2. Are three justices necessary to the functioning of the supreme court of Hawaii?
The petitioner argues that each of his questions should be answered in the affirmative, his theory being that the word “absence” in both the Hawaiian Organic Act and the territorial statute includes “death,” from Avhich he concludes that, while the vacancy in the office of associate justice caused by the death of Justice Cristy exists, his place may be filled by a circuit judge, authorized by the Avritten consent of the remaining justices, in accordance with the provisions of section 9610, Revised Laws of HaAvaii 1945.
Apparently the petitioner does not concur in the respondents’ motion that the two remaining justices enter an order disposing of the motion to dismiss appeal, but he does concur in the motion that the court, consisting of the two remaining justices and a circuit judge thereunto authorized by the written consent of the two remaining justices, enter an order disposing of the motion to dismiss appeal.
The attorney general, who has neither filed a brief nor extensively argued, did appear by one of his deputies who made a statement, from which we gather that the attorney general agrees with the theory that “absence” includes “death” and that the remaining justices should therefore designate a circuit judge to sit with them and dispose of the motion to dismiss appeal, notwithstanding the vacancy caused by the death of Justice Cristy.
At the request of the two remaining justices of the court, Messrs. James L. Coke, a former chief justice of the court, and Joseph V. Hodgson, a former attorney general of the Territory, as
amici curiae,
have presented their views on the question involved.
The
amici curiae
do not agree that the two remaining justices, acting alone, have authority to dispose of the motion to dismiss appeal or to call upon a circuit judge to take the place of the deceased justice to hear and determine the said motion.
I shall first consider the interpretation placed by the officials of the Republic of Hawaii, both executive and judicial, upon the above-mentioned sections of their constitution and statute.
Any act or statement of the executive or judicial officials of the Republic of Hawaii, manifesting his or their interpretation of section 88 of the 1894 constitution of the Republic of Hawaii and section 1170, Hawaii Civil Laws, may properly be considered as applicable to section
82 of the Hawaiian Organic Act and section 9610, Revised Laws of Hawaii 1945.
President Dole of the Republic has left no doubt as to his opinion of the meaning of said constitution and statute. In December 1899, when he was holding his office as president by virtue of the provision of the joint resolution of Congress approved July 7, 1898, whereby the Hawaiian Islands were annexed to the United States, he received a letter from the chief justice of the supreme court tendering his resignation as chief justice. The joint resolution provided that until Congress should provide for the government of such islands the powers of the officers of the Republic should be exercised by such officers in such manner as the President of the United States should direct. Accordingly, President Dole declined to accept the resignation of the chief justice unless directed to do so by the President of the United States and in asking for direction of the President of the United States he said in part: “I have not accepted his resignation as yet, as that would embarrass the status of the Court, there being legal provision for temporarily filling the place of an absent Justice, but none providing for an absolute vacancy, excepting by permanent appointment.”
In the case of
Bush
v.
Rep. Haw.,
12 Haw. 332, on March 20, 1900, the chief justice being “absent and on account of illness unablé to sit with us,” the remaining justices, Frear and Whiting, requested and authorized Circuit Judge Perry to sit with them and hear and determine said cause. When the said cause was called for hearing on said March 20, 1900, counsel for plaintiff filed a petition alleging:
“1. That this Court is not properly constituted to hear cases.
“2. That A. Perry, Esquire is not legally qualified to sit in this case.
“3. That heretofore on the 28th day of December 1899 the Honorable A. F. Judd, then Chief Justice of this Court, duly filed with S. B. Dole, President of this Republic, his written resignation of the Chief Justiceship of this Honorable Court, and that the said A. F. Judd then and there ceased to be Chief Justice of this Honorable Court.” The prayer was that “this Honorable Court decline to hear the above entitled cause at this time, and until a Chief Justice shall be duly appointed and installed in office, and that Hon. A. Perry may not sit in this case.”
After hearing evidence as to the alleged resignation, the court concluded that the tendered resignation of the chief justice not having been accepted, it was not effective and that Circuit Judge Perry was therefore properly authorized to substitute for the absent chief justice.
However, after reading the decision in open court Justice Frear announced, before adjourning, that the court would be ready to hear any cases tomorrow, “but that it will not force cases to trial if counsel do not agree.” (Minutes of the afternoon session of March 24, 1900.)
Prior to the action of President Dole in refusing to accept the resignation of Chief Justice Judd, a vacancy existed in the office of associate justice for a short time after the death of Associate Justice Bickerton.
On or prior to December 10, 1895, the justices of the supreme court of the Republic of Hawaii were A. F. Judd, chief justice, R. F. Bickerton, first associate justice, and W. F. Frear, second associate justice. Justice Bickerton died December 10, 1895 and Second Associate Justice Frear, on January 6, 1896, was appointed first associate justice to succeed him and on January 11, 1896 W. A. Whiting was appointed second associate justice, succeeding Second Associate Justice Frear. Thus from December 10, 1895 to January 11, 1896, there Avere only the chief justice and one associate justice of the supreme court.
During the foregoing vacancy in the office of associate justice, the following causes Avere determined by Chief Justice Judd and Associate Justice Frear:
Laing
v.
Laing,
10 Haw. 183;
Mattos
v.
Wilcox,
10 Haw. 186;
In re Estate of Opae,
10 Haw. 188;
Horner
v.
Kumuliilii,
10 Haw. 174.
The
Laing
case was submitted on stipulation, dated December 20, 1895, to the “Court as now composed” and decided January 3, 1896.
The
Mattos
case was submitted on stipulation, dated December 17, 1895, to be “tried & decided by Honorable Justices comprising the Supreme Court sitting in Banco now present and respectfully request them to hear & decide the same” and decided January 3, 1896.
The
Opae
case was submitted on stipulation, dated December 17, 1895, “to their Honors the Chief Justice A. F. Judd and Justice W. F. Frear” and decided January 4, 1896.
The
Horner
case was submitted on stipulation of the parties, dated and filed July 8, 1895, which reads as f oIIoavs :
“Whereas the above matter has been argued & submitted to the Court & since then Hon R. F. Bickerton has been taken ill and is unable to take further part in said cause it is hereby stipulated and agreed that the remaining justices avIio heard said cause may proceed and decide said cause and such decision shall be as binding & valid upon the parties hereto as if made by the full Court.”
However, the opinion of the íavo remaining justices was not filed until December 16, 1895, six days after the death of Justice Bickerton.
The case of
Cross
v.
Hawaiian Sugar Co.,
12 Haw. 415, Avas decided by Frear and Whiting, justices, on June 20, 1900, one month after the death of Chief Justice Judd and prior to the appointing of his successor. It appears,
however, from the record that the parties had on March 28, 1900 stipulated as follows:
“It is hereby stipulated and agreed between counsel in the above entitled cause, that the determination of the issues of the case by the Supreme Court as at present constituted shall be final and binding upon the parties hereto and shall be a bar to any exceptions or review by any other Court.”
Spalding
v.
Alliance Ins. Co.,
10 Haw. 190, on October 29, 1895 was submitted for determination by the court then composed of Chief Justice Judd, Justice Frear and Circuit Judge Cooper in place of Justice Bickerton “absent from illness.” Justice Bickerton died December 10, 1895 and the opinion was not filed until January 9, 1896, one month after the death of Justice Bickerton.
Scott
v.
Nahale,
12 Haw. 147, was decided by Justices Frear and Whiting in the absence of the chief justice, in accordance with a stipulation, dated October 11, 1899, as follows:
“It is hereby stipulated and agreed that the decision in this action argued before said Court may be rendered by the two remaining Justices in the absence of the Chief Justice, and that said decision will be as decisive and binding upon the parties hereto and the facts at issue as though rendered by the entire Court.”
The case of
Rep. Haw.
v.
Ah Yee,
12 Haw. 169, was decided by Justices Frear and Whiting, in accordance with a stipulation of the parties, dated November 2, 1899, which reads as follows:
“Agreed that two of the Justices of the Supreme Court shall finally decide these cases. All rights under - the Statute for a decision by a full Court are waived.”
The case of
Buckley
v.
Monsarrat,
12 Haw. 265, was decided by Justices Frear and Whiting, in accordance with
a stipulation, dated October 2, 1899, which reads as follows:
“It is hereby stipulated and agreed by and between the parties hereto that in the absence of the Chief Justice a decision in the above named case may be rendered by the remaining Justices, and such decision will be accepted and bind both parties as if it were a decision of the entire Court.”
After the effective date of the Hawaiian Organic Act, several vacancies have existed in the office of associate justice of the supreme court in addition to the vacancy in the office of chief justice, which began May 20, 1900 and continued to July 7, 1900, when former Associate Justice Frear qualified as his successor. No cause was submitted during that vacancy.
Kapiolani Estate
v.
Thurston,
16 Haw. 471, and
Spreckels
v.
De Bolt, First Judge,
16 Haw. 476, have been cited as cases in which two justices and a substitute judge rendered opinions subsequent to the death or resignation of a justice.
The printed opinion in the
Kapiolani Estate
case erroneously indicated that Circuit Judge Matthewman served in place of Justice Hatch. The original opinion on file in said cause sliows that the opinion of the court was signed by Chief Justice Frear and Associate Justices Hartwell and Wilder.
The opinion in
Spreckels
v.
De Bolt, First Judge,
was rendered by two justices and a substitute judge after the resignation of Justice Hatch and after Justice Wilder had qualified as his successor. HoAvever, the record shows that Circuit Judge Eobinson had been substituted for “Justice Hatch disqualified” on January 7, 1905, the day on Avhich the case was argued, and Justice Hatch did not resign until January 31, 1905.
A vacancy occurred when Associate Justice Wilder
resigned December 17, 1909 and on January 31, 1910 his successor, J. T. De Bolt, qualified. No case was submitted or decided during that vacancy.
The next vacancy in the office of a justice of this court was occasioned by the death of Justice Lindsay, Avho died September 5, 1926. Justice Parsons qualified as his successor on October 25, 1926.
Justice Lindsay was absent from the Territory on August 20, 1926, when
Ter. v. Mann, Territory
v.
Wood
and
Territory
v.
Flint
were consolidated and argued together and disposed of in one opinion, dated November 1, 1926, and reported in 29 Haw. 422. On August 20, 1926 Circuit Judge Parsons was requested and authorized by Chief Justice Perry and Associate Justice Banks to sit with them and hear and determine the said causes. As we have already noted, Judge Parsons qualified as associate justice on October 25, 1926 and on that date the parties stipulated as follows:
“Noav come the Territory of Hawaii, by its attorney, Howard Hathaway, plaintiff-appellee, and J. Donovan Flint, Defendant-Appellant, by his attorneys Brown, Cristy and Davis, Robertson & Castle and Huber & Kemp, and stipulate that the above entitled cause may be resubmitted to the Supreme Court upon the arguments made therein and the briefs on file in said court.”
Like stipulations by Peters and O’Brien, attorneys for the other tAVO defendants, and counsel for the Territory Avere filed in the other two cases on the same date.
Next and finally, a vacancy in the office of associate justice Avas created on June 20, 1941, when Associate Justice Kemp qualified as chief justice succeeding Chief Justice Coke, resigned. The vacancy thus created Avas not filled until April 2, 1942, Avhen Associate Justice Le Baron qualified. During said vacancy no causes Avere submitted or decided.
The Hawaiian Organic Act was enacted with full knowledge of the provisions of the constitution and laws of the Republic of Hawaii relating to the courts. As required by the joint resolution of annexation, two members of the commission, appointed by the President to recommend to the Congress such legislation concerning the Hawaiian Islands as they deemed necessary or proper, were residents of the. Hawaiian Islands. Justice Frear, who had served as a justice of the supreme court throughout the existence of the Republic of Hawaii, Avas one of the commissioners and a member of the judiciary committee of the commission. The judiciary committee of the commission, in a report to the committee on territories, described as successful the judicial system of the Republic and the committee on territories reported that: “In vieAV of the foregoing report it must be considered Avise and safe to provide for the organization of the Territorial Courts of the Territory of Hawaii by substantially continuing them as noAV existing under the Republic of HaAvaii and this has been done in the present bill.”
The positive statement of President Dole, above noted, and his action in accord therewith, as well as the action of the remaining justices after the death of Justice Bicker-ton and prior to the appointment of his successor, also above noted, may be considered as having been adopted by the Congress in enacting section 82 of the Hawaiian Organic Act and by the territorial legislature in enacting the statute, now section 9610 of the ReAdsed LaAVS 1945.
From the action of the remaining justices of this court, on the various occasions Avhen a vacancy has existed either by death or resignation, in refraining from compelling litigants to submit their causes to them alone or to them and a circuit judge thereunto authorized by them, I believe that Ave may properly presume that they did not consider that the laAV on the subject authorized either
action by them. The foregoing long and uniform action of the many justices of this court in the performance of their official duty should not be condemned, ignored or lightly treated.
Turning now to a consideration of the statutes under consideration, without reference to prior interpretation, construction or administrative action thereon, I find myself unable to agree, with the contention that the Congress and the territorial legislature have provided for or intended to provide for the filling of a vacancy by the remaining justices, even temporarily, for the trial and determination of a particular cause. The power of appointment of justices is vested in the President of the United States with the advice and consent of the Senate by the plain and unequivocal language of section 82 of the Organic Act and no part of that power has been delegated to anyone else. The words “any justice thereof,” used in the phrase “in case of the disqualification or absence of any justice thereof” used by the Congress in section 82 of the Organic Act, clearly refer to a living person. At least the legislatures, which enacted the statutes to implement the provision of the constitution of the Republic and the provision of the Organic Act, understood that to be the meaning of said words.
The applicable definition of the word “justice,” used as a noun in the phrase “any justice thereof” in section 82 of the Organic Act, is:
“2. A person duly commissioned to hold courts, or to try and deeide controversies and administer justice; a judge or magistrate; esp.: a In England, a judge of the Supreme Court of Judicature, formerly of the King’s Bench, Common Pleas, or Exchequer; in the United States, a judge of a common-law court or a superior court of record.” (Webster’s New International Dictionary, Second Edition.)
“Justice,” as a noun, is synonymous with “judge” and a judge is defined by Webster as “A public officer who is invested with authority to determine litigated questions; one who gives a judgment.” Obviously, when a judge or justice dies he is no longer a public officer — a vacancy exists in the official position that he held while living; he is no longer vested with authority to determine litigated questions; he is incapable of giving a judgment.
“In law, the word ‘person’ does not simply mean the physical body, for if it did it would apply equally to a corpse. It means a living person composed of body and soul.”
(Morton
v.
Telegraph Co.,
130 N. C. 299, 41 S. E. 484.)
“It is axiomatic that a corpse is not a person. That which constitutes a person is separated from the body by death and that which remains is ‘dust and ashes’.”
(Brooks
v.
Boston & Northern Street Railway,
211 Mass. 277, 97 N. E. 760.)
“The word ‘person’ as it is ordinarily used means a living human being. It is so defined by Webster’s and in Johnson’s and in the Century dictionaries. It is so defined by the courts.”
(State ex rel. Bancroft
v.
Frear,
144 Wis. 79, 128 N. W. 1068.)
The word “unable,” used in the phrase “if any of the justices of the supreme court * * * shall be unable to attend from sickness, accident, absence or any other reason” found in the implementing section of the statute, is defined by Webster as “Not able; incapable; unqualified; incompetent; inefficient; also
Poetic,
impotent; helpless.” The word “unable” modifies the word “justice.” A justice is a person and a person is defined by Webster as “A being characterized by conscious apprehension, rationality, and a moral sense; a being possessing, or forming the subject of, personality; hence, an individual human being; a particular individual.”
The Texas constitution under consideration in
Glover
v.
Albrecht,
173 S. W. 504, provided that a vacancy in the office of judge should he filled by appointment by the governor. It also authorized the legislature to provide for the holding of court “when the judge thereof is absent, or is from any cause disabled or disqualified from presiding.”
Pursuant to the authority delegated to it, the legislature enacted that:
“Whenever, on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of the court, the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the business of the court; but the practicing lawyers of such court present thereat may proceed to elect from their number a special judge of said court, who shall proceed to hold said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any business begun before such special judge.”
The regular judge of the district court of Harris County was absent and unable to be present on March 6, 1911, when a term of his court was due to begin. Thereupon, pursuant to the above statute, a special judge was elected for said term by the practicing lawyers of said court present thereat. On the same day the special judge qualified.
The regular judge of said court died on April 23, 191.1 and on April 28, 1911, during the March term of said court, the governor appointed a regular judge of said court while a motion for new trial was pending in a case of
Glover
v.
Houston Belt & Terminal Railway Company.
The regular judge appointed by the governor qualified on the day of his appointment and thereafter the special judge, avIio had tried the case of
Glover
v.
Houston Belt & Terminal Railway Company,
granted the motion for neAV trial and the appeal in the case of
Glover
v.
Albrecht, supra,
involved the validity of that action by the special judge. In passing upon that issue the court said “We do not think any of the above terms [absent, disabled or disqualified] should be construed to embrace a vacancy caused by the death of the regular judge, and the Legislature has not authorized the appointment of a special judge in such case.” It held, hoAvever, that it does not folloAV that, Avhen a special judge has been duly appointed in the circumstances contemplated by the constitution and statutes, his authority to complete the business he had begun and Avas appointed to transact should cease upon the death of the regular judge.
H. H. Moore {Pratt, Tavares & Oassidy
Avith him on the brief) and
I conclude that, in obedience to the territorial statutes Avhich provide that “Parties to causes pending before the supreme court shall be entitled to a hearing before all of the justices thereof, and may not be compelled to go to trial before less than the full number thereof,” Ave must hold that parties to pending causes may not be compelled to go to trial before the íavo remaining justices during a vacancy hoAvever created.
I also conclude that the proviso in section 82 of the Organic Act and the proviso in the territorial statute implementing it, do not empoAver the tAvo remaining justices to authorize a circuit judge to sit Avith them to hear and determine causes during a vacancy in the office of a third former justice.
I think, therefore, that both of the motions under consideration should be denied.
J. R. Gades {Smith, Wild, Beebe & Cades
with him on the brief) for the motions.
W. F. Quinn (Robertson, Castle & Anthony
with him on the brief) and
S. Shapiro,
also on the brief, contra.
J. L. Coke
and
J. V. Hodgson, amici curiae,
filed a brief bnt did not argne.