The Hawaiian gazette., 1877-10-03
Dissenting opinion of Judd, J.

On the lst November, 1876 Kanahele, the de-
PENDANT, bound himself by written contract to
serve j. Mott & Co., the plaintiffs for o term OF
forty-eight months. The language OF defend
ants engagement is as follows:
That |, Kanahele, agree to labor for j. Mott
& Co., or their agents. and for their heirs, exc
cutors and administrators, and or for their as
signs, in case of the transfer of the Walohinu
Plantation. for the term of forty-eight months,
from the End day of November, A. d. 1876, OF
such labor and in such place as they or their
agents, or their heirs and assigns, as aforesaid,
may direct. diligently and faithfully. and without
deserving their service. And it is understood
that the " month spoken of above is to consist
Of twenty-six days of actual labor"
On the 18th of February, 1877, j. Mott d Go.
executed an agreement with Alexander Hulchin-
son by which they agreed to sell the - Waio-
hinu Plantation to said Hutchinson for the sum
Of $1,000, he agreeing to pay $4,000 cash, aud
the balance in three, six and twelve months !;
Mott Co., on receiving the full sum of 81 900,
to execute and deliver to Hutchinson good and
sufficient deed for the said property.
A power Of attorney was also given by Mott
& Co. to Hutchinson to conduct the said plaR-
tation and to direct and control the laborers en-
gaged thereon.
Hutchinson took possession Of the plantation,
the crop of cane to be ground this year is to
belong to me. | am not accountable to j. n OFT
& Co. for the management of the place or for
any losses or profits of the place or for any Of its
proceeds"
Kanahee refused to work on the plantation,
alleging that it had been sold and that his con-
tract was thereby annulled. He was arrested
under the law authorizing it, fined by the Dis
trlct Justice, and appealed to the Circuit Judge,
who reversed the decision of the District Justice
and ordered judgment for the defendant where.
upon an appeal was taken to the Supreme Court
in Bauco.
The statute under which this contract was
made, reads ss follows: Section l4l7, Any
person who has attained the age Of twenty years
may bind himself or herself, by written contract,
to serve another in any art trade, profession, or
other employment, for any term not exceeding
five years" Subsequent sections and amend
ments thereto give the employer the right to en-
force such contracts, by an appeal to the Courts
who are authorized to fine the laborer for wfu
| desertion.
In go far as the labor laws of this country au
! thorize the Court TO punish laborer for derelic
/ ton of duty by fine and 10 default of his pay
ing it by imprisonment at hard labor they are in
! derogation of the common law, and being pena
! laws should be construed strictly.
! The words of section l4l7 above quoted
| :" Any person may bind himself t.
| serve another" means that he may bind himsel
| TO serve an individual who is ascertaned anC
! known to the laborer at the time of making hi,
! contract, or who could be ascertained by the
! laborer il be made inquiry.
This section does not authorize man to MAKE
! contract to serve one who is wholly unascer
tanned, or who is to be ascertained independent,
| of the servants will.
The policy of our institutions and laws forbid:
the making of such contracts.
Section 1924 Of the Civil Code recognizes thi
principle SO far as TO say that no contract of ser
vice made in pursuance Of Sections l4l7 ant
| l4l6, should bind the servant after the death 0
| his master; that is, he cannot be held to Wort
| for the heir, executor, or administrator of hi
| master. This last quoted section continues
provided, however, that where servants shal
be so bound by any company of individuals. tn
death OF any one partner, or the change of part
ners, in such company, shall not operate OF re
lease such servant from the terms of his con
tract.'
On the principle above stated, at common Law
death of one of q copsrtnership or change @
partners (either of which would operate as dis
solution OF the eopartnership) would release th
servant. Were it not for this statute, the sci
want could plead successfully, upon such chang
occurring. that his consent to serve under tb
new conditions was essential to the binding effec
Of the contract.
This Court, in the case of the owners of tn
Wahee Plantation VS.. Kalapu, January Tern
1877, has construed this section to mean "tha
whatever changes may take place in the origins
firm employing the laborer, the contract cor
tinues to be binding so long as one of the orig
nal members remain in the firm, to whom th
laborer can look for the payment OF bis wage
for directions Us to his labor and for human
treatment all of which were the consideration
which induced him 10 enter into the contract. /"
Bot there is no enactment OF the Legislator
that will compel man to work for another o
his assigns.
10 the case last referred to, the Court say tina
this is an attempt to assign a contract which
in itself unassignable"
If this expression is, in that case considere
to be o6iter dictrns am willing to repeat O
idU in this case these contracts are not assign
able; TOR if man could be passed from one
another like chattel by an assignment Of h
} contract, il reduces him at once to chattel an
) this is form of involuntary seryitude WhicI
though for limited period, 10, nevertheless, +,