The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-04-14
DISSENTING OPINION OF poLE, ).

II Is my opinion tnat the cQntrHc
in this case is not enforceable for th,
reason that it is not a contract be
tween the parties. 1t is, in brief, |
contract between the Hawaiian Gov
eminent and the defendant in which
the latter substantially agrees L
labor fer such master or masters Is
the Hawaiian Government shall
select, although this purpose is skill
fully yelled in language which dwells
somewhat conspicuously upon the
guarantee of the Hawaiian Govern.
ment to furnish the defendant with
employment. The contract binds
him to accept such employment as
the Hawaiian Government may as
sign him to, in other words,to accept
such master SIS the Hawaiian Gov
eminent may select for him, and il
he objects, to abide by the decision
of the Bureau of Immigration, q
bureau of the Hawaiian Govern
ment.
On the back of the contract is en-
dorsed an agreement between the
Board Of Immigration and the Hilo
Sugar Company dated over two
weeks after the original contract, by
which the defendant is handed over
to the Hilo Sugar Company and
they stipulste to carry out the Gov
enants made by the BOARD of Immi-
grafton in favor of the defendant In
said contract. As a matter of fact
there is no such contract, the original
contract being between the Hawaii
an Government and the defendant,
who is not party to this agreement,
assigning him to the Hilo Sugar
Company. So we have before us the
case of laborer held for service I'M
der contract, penalty enforceable,
if enforceable at all, to masters with
whom he has never contracted; but
he has come into their hands, with
out having the opportunity of choos-
ing his employers, by process sus-
piciously similar to that by which a
Honolulu hack, horse and harness
are hired out to g driver. The fact
that the lGborer receives proper
wages for his work does not take the
case out of that condition of involun-
tary seryitude or semi.slavery which
is inconsistent with our Constitution
snd laws, and with the general tenor
of the decisions of this court, with
one or two solitary exceptions.
The case of Mott & Co. VS.. Kama
hele "A Haw Ia is. admit, distinct
ly opposed to the above view, but l
believe that decision to be wholly
erroneous That was not, however,
as evident a case against personal
liberty as the one before the Court,
as the plaintiffs were the original
contractors, and having sold their
plantation they brought the suit to
compel their lsborer to work on the
plantation they had sold, he having
agreed by his contract to work for
their assigns in case of sale. But
in the case before the court there is
no privity whatever between the
parties; the plaintiffs are the pur-
chasers of the defendants contract
at cost from the Hawaiian Govern
ment; this is | think the clear COM
mon sense view of the transaction,
IN spite of the strenuous avoidance of
any appearance of such meaning in
the language of the instrument.
1t sometimes happens that in the
final settlement of a legal question,
the best law is found in a dissent
ing opinion. This is / think the
case in Mott & Co. VS.. Ksnahele, and
l desire to quote briefly from the dis
senting opinion in that case of MIR.
Justice Judd.
1.-The words of Section 1417 (Civil
Codel above quoted, any person
: may bind himself to serve
another means that he may bind
himself to serve an individual who
is aseertained and known to the Ia
borer at the time of making his con-
tract, or who could be ascertained by
the laborer If he made inquiry.
This section does not authorize
man to make q contract to serve
one who is wholly unascertained, or
who is to be ascertained independ-
emily of the servants viii. The
policy Of our institutions and laws
forbid the making of such con-
tracts" Up. III
There Is no enactment of the
Legislature that viii compel a man
to work for another or his assigHs"
Up. 49,
If man could be passed from
one to another, like a ehattel, by an
assignment of his contract, it re-
duees him at once to a chattel, and
this is form of involuntary seryi-
tude which. though for limited
period, is, nevertheless, repugnant to
the policy Of our institutions and
forbidden by Article III Of the Con
I" (of 1854 Cp. 1919.
If contract, that is, an agree
ment by which one person binds
himself to serve another, is in its
and nature unassignable,
the Law viii not allow a laborer to
make a contract which is in its
terms assignable. He cannot make
an engagement which is illegal and