The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-10-07
LEFT
The BENCH.
Refuses to Sit as
Supreme Court
Member.
SAYS COURT is
UNCONSTITUTIONAL
interrupts Argument in Fishery
Cases and Gives His View
OF the Law.

After listening to argument in the
fishery cases for an hour and 4 half
Judge Gear, who had been sitting as a
member of the Supreme Court, sudden
ly announced that he would withdraw
stating at the same time that the court
as then constituted was unconstitu-
tional Gears strange action not only
created somewhat of sensation but it
case which the second judge had at
first agreed to hear AMI a consequent
waste of considerable time Judge
Robinson was Immediately called to
take the vacant place and the hearing
then proceeded.
The two cases of S. NJ. Damon ct al
VS.. Territory of Hawaii and ]. o. Car
ter ct AL, Trustees of the Bishop Is
tate, vs. Territory of Hawaii, action
to establish fishing rights, were .advanc-
ed upon the calendar because of their
Importance and set for trial yesterday
afternoon.
Both Chief Justice Frear and Asso-
ciate Justice Perry are disqualified by
reason of interest or relationship in
sonle of the cases depending upon the
two test cases and Associate Justice
Galbraith requested Judge De Bolt and
Judge Gear to sit with him in the hear
ing. Both readily consented, and the
argument by F. NJ. Hatch was going
along swimmingly for an hour and a
half when Judge Gear suddenly inter
rupted He stated that he was of the
opinion that he could not sit as mem
Der of the Supreme Court as then or
ganized because IL was in violation of
the Organic Act. The Organic Act, he
stated, provided that in the case of dis
qualification of an associate justice the
vacancy could be filled by calling in a
member of the bench or bar but that
where two Justices are disqualified, the
remaining member of the court could
not fill both places. This matter he
continued had been brought out before
the Senatorial Commission which coin
cided with his view that the filing of
stitutional' Such being the case he
could not conscientiously sit, believing
his action to be illegal. He therefore
withdrew. explaining that he had been
SO interested in the argument that he
had not thought of the matter at the
opening of court
There was a whispered consultation
between Justice Galbraith and Judge
7. p01A ~,
that Judge Gears position was wrong
for Judge Robinson was Immediately
summoned, Justice Galbraith expressing
regret that the interruption should have
come after the hearing was we'll I'M
der way, instead of at the opening.
Judge Robinson also took the view that
the court was, legally constituted, for
he accepted the invitation of Justice
Galbraith after Gears refusal had been
explained. The argument then proceed
ed, Mr.. Hatch stating that he would
condense his statement of the case and
file brief.
j. A. Magoon, who appears for the
John Ii Estate and other fishery claim-
ants, also argued briefly. He contend
ed that the fisheries were just as much
property as any land or buildings.
Judge Stanley also asked that he be
allowed to file a brief in the case he
representing parties having claims.
A. G. NJ. Robertson, who appears for
the Territory, will present his argument
this morning.
The calendar was called by Chief
Justice Frear the first thing yesterday
morning.
The following cases We're continued
until next session: Hawaii Mill Co. VS..
Alfred Andrade. Kapiolani Estate VS..
haneohe Ranch Co. and Sun Kwong
Mau Co. VS.. Waikiki Land & Loan AS
ISOLATION.
The following are to be submitted on
briefs; Tomikawa VS. u CANA, from
Fourth Circuit; B. L. Jones VS.. ], K.
Peterson. from Fourth Circuit, and
High Sheriff ex rel Lee Wal VS.. Ha-
waiian Supply Co, from Honolulu Dis
trict Court.
Chief Justice Frear announced that
the court would sit during the week
and on Friday the day of adjournment
will be announced.
Chinese Piracy.