The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1906-04-06
HIGASHI GOES BACK
TO HONOLULU JAIL !"
CONTINUED from page oueJ,

The qu s,ions of the disqualification
of Chief Justice Frear was considered
at length in the decision also i'm a con-
curing opinion by Frear i'm which he
takes occasion 20 mphatinally reldirm
his adherence to his dissenting opinion
i'm the Motley case. The court says:
THE appellee. who was petitioner
for writ of habeas corpus, claims that
the chief justice is disqualified because
he expr ssed to member of the judi
ciary committee of the Legislature his
50 Laws Of 1905, it being material to
i eide whether the act, i'm providing
that no person upon conviction of
misdemeanor shall be imprisoned in
Oahu prison or subjected to any in
famous punishment amends Sec. 3l19.
II. L., authorizing imprisonment at
hard labor not exc eding one year 1t
is claimed that approval of the bill is
like the former relation of attorney and
client which, as held i'm the Motley will
cas-. is not a disqualification, but the
petitioner was allowed to argue that
the decision was wrong
"The cases do not support the appel
lees cont ntion. \ law which is clear
and unambiguous and the application
of which i'm it's literal terms results in
no peculiar hardship or i'm absurdity,
requires no construction or interpre-
tation All that the court can do in
such cas- $ is to declare the law to be
as it is without undertaking to modify
its terms
ITO hold that bias is a cause of dis
qualification. under certain crcum-
stances, would require the same ruling
under all circumstances and whether
the bias would be likely to influence the
judgment or not. This would be judi
cial legislation The fact that bias,
existing in various specified relations,
or generally, has elsewhere been made
the subject of legislation. indicates
that | gislation was considered to be
necessary. We hold that the chief jus
tice is not disqualified
The chief justice says:
After hearing counsel I feel if any
thing more strongly than when | dis
scented i'm the Motley case that having
taken an active part as counsel in a
case is a disqualification under Ha-
waiian practice and presidents. but l
do not how that has any bearing
on the present case
THE question therefore is reduced
to this wher- Their an expression of
approval of statute to some person
disqualifes a Judge. An expression
of approval or an opinion on either
the law or the fact of a cas- would not
i'm itself disqualify even a juror from
sitting in that very case, for it might
appear that he could give a fair YER
| dict notwithstanding. If a judge W re
disqualified because he had expressed
an opinion on the law or an approval
of it, he could not sit in any case in
which was involved qu stion of law
upon which he had expressed an OPT
Mon as a student, or as an attorney
or i'm a decision or dictum by him as n
judge i'm some other case, or i'm an
opinion to the executive or legislative
branch Of government such as the jus
tees of this court were for many years
and the justices of many other supreme
courts ar now required by cOnstitu-
| tional provision to give under certain
/ circumstances. That would be abb
surd. In the absence of constitutional
or statutory provision to the contrary
] one may sit as a member of an APP
J psllate court ON an appeal from his
/ own decision as a trial judge i'm a
case, and that was done here regularly
until the reorganization Of the judiciary
/ in 1892 and has been dom i'm many
other jurisdictions"