The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-04-27
PREMATURE
QUALIFYING
Supreme Court Justices
Were Sworn Before
Appointment.

Chief Justice Frear and Associat e
Justice HartwelI, as witnesses before
Judge Lindsay yesterday, told how
both Of them took the oath of Office
nearly two years ago day before
they were appointed. Also they relat-
ington that they had illegally qualified,
they again qualified fourteen days lat
er. 1t was a new appointment for Jus
tice Hartwen and a reappointment for
the Chief Justice. The interesting
question appears to arise whether
there was a legally constituted Su-
preme Court of Hawaii in those four
teen days of June. 1904, below men
toned
The occasion of calling these MEM
bers of the Supreme Court bench in
the Circuit Court was the contest over
defendants bill of exceptions in the
case of Territory of Hawaii VS. Cotton
Bros & Co., in which verdict for the
Territory for s25.00o and costs is out
standing. A motion of the Territory
was up to dismiss, and one of the de-
PENDANTS to amend the bill. Thus far
in the controversy it seems, as two de-
cisions of the Supreme Court have
shown, that there was a technical fail
ure OF the defendants to file their ORR
ginal exceptions in time. AS General
Hartwell before taking the judicial Of
flee, was counsel for the defendants,
the time of his appointment was now
important as showing whether or not
failure mentioned
Justice Hartweu, the first called, said
he received a cablegram On June H.
1904, from Attorney General Knox ask
ing him if he would accept seat on
the Supreme Court bench, and if so
requesting him to qualify forthwith.
Chief Justice Frear received similar
request and U. s. Judge Dole. being
of the situation, kindly came
up to the Supreme Court room and
the oath of Office to both
of them. It appeared, however, that
their commissions were dated June Is
and on June 81, a letter came from the
clerk of the Department of
Justice stating that the qualifica tons
of the Justices were illegal, as having
been effected before their appointment,
and advising them to take the oath
again. They did so on June g. JUS
tice Hartwell said he signed a form
of oath. but did not know whether it
was left with Judge Dole or taken
away by himself
This last question brought out the |
reason for calling the justices to the
witness stand, as it appeared the |
Chief Justices oath had been found |
while Justice Hartwelrs had not
On the first occasion, as Chief JUS !
tice Frear explained, makeshift form |
Of oath was devised from the statutes. |
while on the second occasion the regu- |
lar form came attached to the commits |
sions
Judge Lindsay sustained objections |
by Messrs. Kinney and Derby to the |
s-questioning of Justice HartwelI |
by Attorney General Peters on the |
of the case by witness as |
counsel to Mr.. Kinney, also to cross |
axamina ton on the affidavit of witness
fled in these proceedings
Are you quite sure?" was a ques- !
ion the Attorney General asked of the .
Chief Justice, when the latter had testi- |
led to his qualifying. along with JUS
ice Hartwell, on June IA, 1904. AS
he Chief Justice did not make any
'eply, the Attorney General fastened |
% explain why he thus essayed to test
he memory of the Chief Justice on a
positive statement.
TT is because your oath is on file,
md Justice Hartweli's is not there"
Mr.. Peters said. Chief Justice Frear
explained how such a thing might have
Mr.. Derby asked the court to allow
defendants. in the event of it's ruling
hat they had the right of filing a bill
# exceptions, one day after such ruling
or the purpose
When Judge Lindsay intimated his
opinion that the request for day, in
UGH circumstances, was only fair, Mr..
PETERS strongly objected, saying that
he courts duty was to rule on the
omission of the exceptions and not
n what should be done if such and
UGH ruling were made.
Judge Lindsay nevertheless, in con-
inuing the hearing until this morn
ng. granted Mr.. Derby's motion to al
DIV defendants one day for filing their
RECEPTIONS after the court ruled, if it
hould do SO. that they had the right
0 file exceptions.
Deputy Attorney General Milverton
SISTED his chief at the hearing yes
ardav