The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1905-04-10

Bolt ended the matter by saying he /.
would not sit Judge Lindsay was call I.
ed for and then the question of Hart .
wells disqualification was taken, up.
Magoon said that it appeared to him
that Hartwell's remarks at the close
of the Dee Smith case were intended as
a castigation of him for hisc onduct. 1t
appeared to him that Hartwell was
very violently prejudiced against his
conduct i'm that case If this was not
sufficient ground said Magoon. ne
would file affidavits.
"On other grounds?" asked Frear.
Magoon said that there were personal
grounds also, for his objection to Hart
well.
81 see no reason why they should not
be stated" said Hartwell.
IF the matter is presented in writ
ing l can be more accurate" said Ma
COON. Il will say now that there are
strained relations between yuorself and
myself and the members of my office. 1
believe your honor is prejudiced a.
gainst me-
you have reference to the A. w.
Carter litigation?" said Hartwell.
Yes"
you need not trouble to file afida-
Wits. I feel that you did wrong in the
Carter case litigation. l don't mean
to say that I judged your moral con-
duct, but that was my feeling. In re-
gard to this case of Dee against Smith
win say that ! thought your course
was wrong, and l will say further that
no amount of testimony, no code of
ethics win be accepted by me whiSh
regards that conduct as right. / win
not sit here or elsewhere as Il judge
and say that conduct is right that /
think is wrong. If it appears, for eX
ample that the conduct i'm question was
approved by the directors of the corn
pany that WEI not make it right with
me, nor if as has been suggested, it
appears that you. proposed to take The
whole matter before the court will that
make it right. l will not sit here and
make a spectacle of myself by the pre-
tense that ! believe those things right.
1t is another thing to say whether the
course you took would justify the court
in saying punishment or reprimand
should be given Hartwell said he was
not sure that he had special reference
to Magoon in the remarks he made in
Dee VS. Smith, but that he couldn't help
having Magoon i'm mind. AS juror,
required to hear the case de novo, he
would be disqualified, but he would
mot admit In srt he could not sit Judicial
| ly and be fair. He felt that he could
so SIT.
Magoon claimed that the Justices
statement showed his opinion to be
formed, as to the wrongfulness of his
conduct in Dee VS.. Smith. 81 certain
ly think it wrong" assented the asso-
ciate justice.
Bauou argued that if Hartwell were
disqualified there could be no such
thing as a disbarment trial in the Ter
ritory, for every circuit judge neces-
sarily read the records of cases and
forme opinions. IF an torn ~ com
mits "A nlagrant contempt i'm the pre-
sence of the court, the judge must form
an opinion then and there" he said.
( yet he is not held disqualified to hear
the CONTEMPT case following"
The matter was left to Hartwell, and
he announced his decision that he
would sit, the other two concurirng.
Hartwen said that the case was the
same as a contempt matter at the close
| of any other case, ana the judge who
had heard the whole case was not dis
qualified. Il do not think | should
! be doing my duty If l refused to sit, "
he said.
The matter was set for Wednesday
morning when Magoon will file plead
ings and possibly a motion for con-
tinuance with afidavits. Chief JUS
tice Frear Associate Justice Hartwell
and Circuit Judge Lindsay Will hear
the case.