The Hawaiian gazette., 1906-03-27
JUDGE GEAR CHALLENGES
WHOLE SUPREME BENCH


tion.
Chief Justice Frear said legislatures
in this country and In many states had
been in the practice of asking supreme
courts for opinions on legislation.
THAT system provides mode of
procedure" Judge Gear replied.
ut ia an ex parte proceeding" the
Chief Justice observed.
Judge Gear said the United States
Supreme Court would not consider
such questions, and It ought to be
good example. He claimed the right
of the petitioner to have his case tried
by Justices who had not previously
rendered a construction of the very
law in question.
Justice Wilder wanted to know what
was the definite objection-opinion
bias, prejudice. or whatever 1t was.
Judge Gear answered that he con-
sidered the report of the House Judi
ciary Committee would be reason
enough on which to base a request for
a decision
THE MOTLEY DECISION.
Justice Wilder said the decision in
the Motley case decided that Justice
mad no right to withdraw unless 1t
were shown that he was disqualified.
Judge Gear promptly responded that
he thought the Motley decision was
wrong and that. IL an opportunity
arose. the court might reverse itself
He would like to have the point ar
gued in this case. To him that de-
cisior was repelant.
1.-THE idea was so repellant to me-"
Justice Hartwell said with much earn
estncss. that I was within an ace of
resigning from the bench. 1t was only
my firm conviction that the law COM
PEELED me to sit In the case which de-
clded me"
Judge Gear remarked that he knew
that the members of the bar generally
would like to have that question re-
argued. He once tried case for two
weeks before finding that he was on
the record as counsel-when he dis
covered his firm name of Davis &
Gear in the pleadings-and all of the
attorneys in the case agreed that he
should not sit further.
you did not give them a chance
TO say anything" Justice Wilder
laughingly corrected. you just step
ped out"
In further conversation Judge Gear
admitted that 1t did not appear from
their statements that Justices Hart
CkHell and Wilder were disqualified, and
I'm answer to questions he stated the
general merits of the habeas corpus
case. AS to the penalty question he
cited the Savidge case decision, where
I,at
ty could not be split up at the dis
erection of a Judge.
Justice Hartwell said he had no such
feeling of anxious pride about having
his opinion justified which Judge Gear
mentioned as a reason why no Judge
should give advice on pending legls-
lation
THAT is because of your long legal
training" Judge Gear responded. He
went on to contend that a bad pre-
cedeut should not be established. 1t
was immaterial just what was done by
any Justice of the Supreme Court when
the question was submitted to him. The
admission of the Chief Justice was
some ground on which to test the ques-
tion.
"Even-if everything Judge Gear has
said were true" Mr. Prosser remark
ed, 81 do not think it amounts to dis
qualification" The Deputy Attorney
General, having inquired If he was
expected to make an argument. was
told by the Chief Justice that the
court would be glad to hear him.
Judge Gear in reply to the court,
said he had closed.
Justice Wilder suggested that per-
haps he would like to present a more
formal argument.
II would be glad to discuss the ques-
tion in the Motley case" Judge Gear
answered. III the courts mind is not
irrevocably made up"
Justice Wilder said he would be glad
TO hear the question argued again.
Monday morning at 10 o'clock was
set for "A further hearing on Higashis
affidavit.
Mr. Prosser then wanted to know
Just what Judge Gears grounds were,
and Judge Gear read the affidavit He
also admitted that the question was
narrowed down to the position OF the
Chief Justice. Mr.. Prosser put the
case thus:
Whether an informal opinion OF a
Justice OF the Supreme Court upon an
Act OF the Legislature before its pas
sage dlsqualiiies him from afterward
sitting to construe such Act?"
That's about it, the chief Justic,
asaented
10 get the basis of objection on tn,
record the court stenographer was call
| ed In. when the members OF the courI
| dictated voluntary statements az fol-
lows drom the Advertiser reporter'i
/ own notes..
COURTS TESTIMONY.
chief Justice Frear-"According Il
my recollection I approved Act 30 o
the Laws of 1905 before its enactment
To what extent I approved H. or 4
whom, ar when, | do not recollect.
do not remember having given Il care
ful consideration, except that I wa
familiar AZ that time with the aim
ouliirH' which this Act, together viii
other acts, was intended 10 obyiate
bseauss those difioul,ies had been pre-
sanisd ~ length through argument 4
the court IN previous eases"
Amer Justice liartNsll had made hi
statement aH below, the rhlef Iustic
| uaaas fla fullnuiua aaalfinu IA his auI