The Hawaiian gazette., 1906-03-16
RADICAL DEPARTURE MADE
IN JUDICIARY PRACTICE


stance when the court consists of on
ly one judge and there is no provi-
sion for a special or substitute judge.
This probably accounts for the pau
city of decisions on the question. for
as a fact judges have generally de-
clined to sit when they have been of
counsel. Indeed such has been the
concensus of opinion as to the impro-
priety of a judge sitting in such a case
that. to quote from IL Am. & Eng,
Enc. of Law, I'd Ed, 7s9. AT the pres
ent time 1t is usually
If not universally provided in the con-
stitutions or statutes of the different
states that one who has been of coun-
sci in the case may not act as Judge :"
THE REASONABLE CONSTRUC-
TION.
on the seeming discrimination be-
tween circuit and supreme court
judges Chief Justice Frear has this to
say:
There is greater reason here Than
elsewhere for holding a Judge disuual-
flied by reason of having been of coun-
sci because the statute. If 1t is valid,
deprives the members of the court of
the power and duty, which is always
recognized in connection with the
common law rule, to decline as mat
ter of propriety to sit except in rare
cases Of necessity The statute makes
II the duty of a member of this court
to sit in all cases in which he is not
absolutely disqualified or absent, for
1t provides that parties shall be enti-
tied to hearing before all the justices,
and may not be compelled to so TO
trial before less than the full number
thereof, with the proviso that in case
of the disqualification or absence of
any of the justices in any particular
case his place may be filled by cir
cult judge; and it would not be com
petent Cor the legislature to authorize
Il special or substitute judge to take
the place of justice of the supreme
court except in case OF disqualified
ton or absence. See Org. Act, Sec.
50. This statute. moreover, seems TO
recognize that having been of counsel
is n disqualification, for it provides
that the circuit judge who fills the
place of disqualified or absent SUI
preme court justice shall be one who
has had no connection with the case
as counsel. Ii might be contended,
from the fact that this is specifically
mentioned in connection with substi-
tute judges, that it was supposed or
intended not to be the law in regard
TO regular members of the court, but
n different view of special provisions
of this general character has been TAX
EN- by other courts
He quotes cases from Florida, New
Hampshire and Wisconsin in point, al
so the Hawaiian statute that, after
its ruling out Of the substitute Judge
or judges for having been counsel In
the case. adds, "and who is or are not
otherwise disqualified" implying, the
Chief Justice comments, that having
been of counsel was u disqualified
ton
AN ANCIENT PRACTICE,
Chief Justice Frear goes on to say
that what would seem to be conclu-
sive in this jurisdiction Is that having
been of counsel has become establish
ed as a disqualification by the COM
mon law of Hawaii as shown by usage
and judicial precedent. AS stated in
the Florida and New Hampshire cases
above mentioned with respect to their
reports and records, our reports ana
the relationship of counsel as a dis
qualification"
He proceeds to indicate fifty-four
Hawaiian cases covering "a period from
1868 to the present term, as some of
the cases in which a member of this
court has not sat because he had been
Of counsel" One of these cases was,
indeed, "a previous stage of the case
now before the court in which the
same justice (HartwelD now i'm ques-
ton was held disqualified for the same
reason that is now urged"
REPEATEDLY DECIDED.
1t had not only been the practice,
but there had been repeated adjudica-
tions of the question. In only the Love
and the Motley case had it been con-
tended that the justice who had been
counsel in the case was not disquali-
fed. Ever since the eighth volume
of reports the decisions showed that
the justices in question did not sit
because disqualified" instead of be-
cause they declined to sit" The Love
case may have gone too far. "If it
did, it should be overruled. If it did
not, 1t went at least far enough and
should not be extended"
OLD HAWAIIAN LAW
The Chief Justice regards some of
Justice Hartwell's authorities as not
in point and shows that the provision
of the Organic Act, cited by the ma
Jority as excluding all disqualification
not mentioned therein' was copied from
Hawaiian constitutions dating back SO
years, and concludes as follows:
Perhaps the rule should be follow
ed that where one state borrows
statute OF another state 1t borrows
also the construction put upon 1t by
the latter state, and especially in view
OF the fact that this section is not
merely borrowed By one state for it.
self from another state. but is a mere
continuation of the statute for the
latter state Itself. Upon the extent
To which the Hawaiian law relating to
the judiciary has been continued In
force by the Organic Act see Ops.
Atty Genl. 539; Schooner Robert Lew
ers vs.. kekauoha, ia Fed. S49; Car
ter vs. Gear, 1917 U. s. 34s; 1G Haw.
2i2' There Is no doubt, as shown by
the list OF Hawaiian cases set forth
above that this section has not been
regarded In The past as exclusive. The