The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-24
JUDGE GEAR CHALLENGES
WHOLE SUPREME BENCH

New and strange dSNelopliltiItS O. N7'
j in the Higashf habeas corpus case be-
fore the Supreme Court yesterday
They are such as TO sidetrack, for a
time. the Infamous punishment issue
on which that case turns.
| Former Judge George D. Gear chal-
lenged the Jurisdiction of the entire
bench of three justices to hear the
case, because, according to the Journal
of the House of Representatives, they
had carefully considered and approx
| ed" a bill that was passed later and,
as an Act of the Legislature of lso5'
now came before that court to be con-
strued.
1t turned out, in the discussion that
followed. that only the Chief Justice
was consulted about the bill prior to
it's passage-and he not to the extent
set out in Higashis affidavit presented
bv Judge Gear. Yet the court appoint
ed a hearing on the question of the
disqualification of Chief Justice Frear.
This. it is expected, Will elicit deer
sion upon the general issue of whether
"a judge who has given advice upon
pending legislation is disqualified 70
construe a law resulting from such
legislation.
A more remarkable development of
the Higashi case on this occasion was
the arriving at common consent TO re-
open the disqualification question as
decided in the Motley will case. 1t was
there held that "a Justice of the SUI
preme Court is not, in the absence OF
statute, disqualified to sit in case by
reason of having been before his ap-
pointment to the bench counsel for one
of the parties in the case, even where
he has taken an active part in the
case and advised upon the questions
in issue.
Justice Hartwell made the interest
ing statement yesterday that he was
within an ace of resigning' in connec-
ton with that case. 1t was his dis
qualification that was in question
there, and his concurrence with JUS
tice Wilder it was which made the
foregoing deliverance law.
Still another curious phase of the
hearing yesterday was the voluntary
testimony, relative to their alleged dis
qualification, which all three members
of the court formally rendered. They
of the circumstances in question but
to place the isS-la correctly on the rec
ord they called in the court stenog-
rapher and dictated their evidence.
THE PROCEEDINGS.
Deputy Attorney General Prosser APP
peared for the Territory on it's appeal
from Judge De Bolts decision releas-
ing Higashi f. om Imprisonment in Ho-
nolulu JAIL Ifn.Zer a writ of habeas cor
pus, on the ground that he was I'M
lawfully sentenced thereto. The ground
of the decision was that Act SO of the
laws of 1905, relating to prisoners
other than felons,' did not author
iZe Imprisonment without hard labor
as punishment for a violation of the
gambling law, because the offense was
a misdemeanor and the law provided
the penalty of fine of not more than
one thousand dollars or imprisonment
at hard labor not exceeding one year
for misdemeanor. Act 50 is as follows:
Section l. No person committed or
held for trial or to secure his attend
ance as a witness or upon civil process
or for contempt or upon conviction OF
a misdemeanor or otherwise by au-
thority of law, except upon convic-
ton of a felony, shall be imprisoned
in Oahu Prison or subjected to any
infamous punishment.
Section 2. This Act shall take eff
feet upon it's approval"
Judge Gear, when the Higashi case
was reached. stated he had an affidavit
Of Higashi to present to show that the
full bench was disqualified for hearing
the appeal. He objected to the juris-
J;1+ ,f 10 =
court.
Upon what grounds ?" Chief Justice
F'rear inquired
Judge Gear replied by stating the
grounds on which the writ of habeas
corpus was granted, adding that While
the statute in question (Act 59) was
going through the Legislature, and on
the second reading, the members of
the court carefully considered the
statute and approved the same" In
proof of this statement he read from
the Journal of the House a report OF
the judiciary Committee signed by
Messrs. Andrade, Haia and Mahelona
Mr. Andrade, he further stated, when
asked which members of the Supreme
Court had considered and approved the
bill, answered, All of Them
Approved of what?" the Chief Jus
tice asked. The policy, the validity or
the effect of the Act?"
Justice Wilder interjected: cit was /
never submitted to me and even if it
was / don't see anything in that af-
hdavit that would disqualify me-.
Judge Gear said that, from the
statement of the Judiciary Committee,
he deemed it his solemn duty to raise
the question. If the statement were
true that Juctices of that court con-
sidered and approved that statute be-
fore its passage, it would be the right
of the petitioner to object to the sitting
of the same Justices in his case involv-
ing, as it did, the construction of that
statute.
The Chief Justice said he was trying
to refresh his memory, but could not
recollect in what form the matter was
submitted to him. He had forgotten