The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-24

courts for opinions on legislation.
THAT system provides a mode OF
procedure. Judge Gear replied.
1T is 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 a
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 it was.
Judge Gear answered that he con-
sidered the report of the House Judi
ciary Committee would be reason
enough on which to base request for
a decision.
THE MOTLEY DECISION.
Justice Wilder said the decision in
the Motley case decided that a Justice
had no right to withdraw unless it
We're shown that he was disqualified.
Judge Gear promptly responded that
he thought the Motley decision was
wrong and that, if an opportunity
arose, the court might reverse itself.
He would like to have the point ar
gued in this case. To him that de-
cision was reDellant.
THE idea was SO repellant to me-"
Justice Hartwell said with much earn
estness, that l was within an ace of
resigning from the bench. It was only
my firm conviction that the law COM
PEELED me to sit in the case which de-
cfded 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 a 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
corrected. You just STEP
ped out
In further conversation Judge Gear
admitted that it did not appear from
their statements that Justices Hart
We'll and Wilder We're disqualified, and
in 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
that court held that a statutory penal
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 legis-
lation.
THAT is because of your long legal
training" Judge Gear responded. He
went on to contend that a bad pre-
cedent 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-
ton.
Even if everything Judge Gear has
said were true" Mr.. Prosser remark
ed, Il do not think it amounts to dis
The Deputy Attorney
having inquired if he was
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.
Il would be glad to discuss the ques-
ton in the Motley case" Judge Gear
answered, ''if the courts mind is not
rrevocabiy 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 Higashi's
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 it's pas
sage disqualifies him from afterward
sitting to construe such Act?"
That's about it, the Chief Justice
assented.
To get the basis of objection on the
-SSOlu tic court WAS cdil-
I'd in, when the members of the court
dictated voluntary statements as fol-
lows from the Advertiser reporters
own notes.:
COURTS TESTIMONY.
Chief Justice Frear-'.According to
my recollection l approved Act SO of
he Laws of 1905 before its enactment.
70 what extent 1 approved it, or to
whom, or when, I do not recollect. l
10 not remember having given it care
tul consideration, except that 1 was
familiar at that time with the diff
;ulties which this Act, together with
other acts, was intended to obviate,
those difficulties had been pre-
;ented at length through argument to
he court in previous cases.
After Justice Hartwell had made his
statement as below, the Chief Justice
made the following addition to his own
statement:
Il do not recollect having expressed