The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1906-03-15

sal acceptance and cannot be ques-
toned. An ALLEGED disqualification by
reason of having been of counsel Is of
recent origin and created by express
constitutional or statutory provisions
AS it may exist independently of re-
latiOnship or peCunary interest i'm the
result it was doubtless based upon
considerations of supposed bias, par
TALLY or prejudice arising from the
relationship OF attorney and client,
which may reasonably be presumed
might influence the actions of the
judge. Newcome V, Light, So Tex al
one who is biased, prejudiced or par
tial should not be a judge, but in the
absence of statute, such person is
not disqualified. AS the common law
did not disqualify for bias, prejudice or
Partially, which gave rise to the rule,
it follows that at common law there
was no such disqualification as that
of having besn of counsel"
In concurring, Justice Hartwel says
he would be very glad to be allowed to
retire, but that he has not discretion
in the matter and cannot retire unless
there is a statutory disqualification.
additional to those mentioned i'm Wild
Frs opinion, Hartwel finally says:
There is no authority i'm the Organic
for refusing to sit in such cases as
this The act fixes the constitution of
the court in all but the cases therein
named"
Chief Justice Frear's dissenting OPT
Mon is quite a lengthy one and also
contains references to many author
tiles. Numerous Hawaiian presidents
are cited in support of the contention
that a justice who has been counsel in
case is considered disqualified to sit
i'm that case, The chief justice con-
cludes his reasoning in tn following
language:
The question being one at least of
doubt and the statute having been
acted on as not exclusive i'm so many
cases both before and since the enact
ment Of the Organic Act and this con-
struction being one which is highly
desirable and which is i'm conformity
with prevailing sentiment elsewhere. as
shown by constitutional and statutory
provisions as well as by remarks of
courts, it seems to me that we should
adhere to it.
There is, 1t is true, a possibility un-
der this view that in some cases all the
members of the court might be dis
qualified and consequently that such
cases could not be heard unless on
the theory that disqualified Judge may
sit in case of necessity, but that con-
tingency might happen under any other
disqualification and would I'm anv event |
rarely happen. 1t has not happened. |
so far as I known, during the fifty-nine
years covered by our reports. If it |
should happen occasionally, that would |
be incomparably better than the alter !
native that members Of the court should |
sit i'm all cases in which they have been |
of counsel-as they would be required !
to do under our statute, If it is valid, |
unless both parties consent to hear
ing by less than three judges"
The motion to quash was set for ar
gument next Thursday The suit is |
n proceeding OF william, Charles and |
David Motley and Maria Hughes to set |
aside the will Of the late Charles Not
ley. Kinney, Mechanism and Cooper
appear for contestants and Holmes &
Stanley for the proponents of the will
and benefciaries Hereunder.