The Hawaiian gazette., 1906-03-27

fore the Supreme Court yesterday.
They are such as TO sidetrack. for
time. the Infamous punishment issue
on which that case turns
Former Judge George ID. Gear chal-
lenged the jurisdiction OF the entire
bench Of three justices to hear the
case. because. according to the Journal
of the House Of representatives, they
had carefully considered and approv-
Cd" bill that was passed later and.
as an Act Of the Legislature of 1905,
now came before that court to be con-
strued
1t turned out. in the discussion that
followed. that only the Chief Justice
was consulted about the bill prior to
it's passage-and he not to the extent
set out I'm Higa shi's affidavit presented
/ by Judge Gear. Yet the court appoint-
ed a hearing on the question OF the
disqualification OF Chief Justice Frear.
I his 1t II expected. Will elicit deci-
sion upon the general issue OF whether
a Judge who has given advice upon
pending legislation is disqualified 10
construe a law resulting from such
legislation.
A more remarkable development OF
the Higashi case on this occasion was
the arriving AT common consent to re-
open the disqualification question as
decided in the Motley will case. 1t was
there held that "a Justice OF the SUI
preme Court IL not in the absence of
statute. disqualified to sit in n case by
reason Of having been before his APP
pointment TO the bench counsel for one
81 the parties In the case, even where
he has taken an active part In the
case and advised upon the questions
In issue"
Justice Hartwell made the interest
.ng statement yesterday that he was
/ within an ace Of resigning" in conuec-
fion with that case. IL was his dis
qualification that was In question
: there and his concurrence with jus
tice Wilder It was which made the
/ foregoing deliverance law.
Stul another curious phase of the
hearing yesterday was the voluntary
testimony. relative to their alleged dis
qualification, which all three members
OF the court fo. mally rendered They
had already made Informal statements
of the circumstances In question. but
% place the isy.s correctly on the rec
NiN lfFN ftlf III luf ibuII 0AtipS-
r1pher and dictated their evidence.
THE PROCEEDINGS.
Deputy Attorney General Prosser ap-
rcared for the Territory on its appeal
from Judge De Rolrs decision releas-
ing Higashi Il ON imprisonment in Ho-
uolulu jail unter writ OF habeas cor
pus. on the ground that he was un-
lawfully sentenced thereto. The ground
of the decision was that Act 50 OF the
laws ~ 1905. relating to prisoners
other than f-lons." did not author
ize imprisonment without hard labor
ls punishment for a violation Of the
gambling law. because the offense was
a misdemeanor and the law provided
the penalty Of fine Of not more than
one thousand dollars or Imprisonment
Gt hard labor not exceeding one year
FOR misdemeanor. Act 80 Is as follows:
section I. No person committed or
held FOR trial or 10 secure his attend
ancc as q witness or upon civil process
or for contempt or upon conviction of
a mlsdemeanor or otherwise by au-
thority of law, except upon convic-
tion of felony. shall he imprisoned
in oahu Prison or subjected to any
Infamous punishment.
Section 2. This Act shall take ef-
feet upon its approval"
Judge Gear. when the Higashi case
WIS reached. stated he had an affidavit
~ Higashl to present to show that the
full bench was disqualified for hearing
the appeal. He objected TO the juris-
dicuon OF the present members of the
court
Upon what grounds?" chief Justice
F'reir inquired
Judge Gear replied by stating the
grounds ou which the writ Of habeas
corpus WAS granted. adding that while
the statute In question (Act 500 was
going through the Legislature. and on
the second reading. the members OF
the court carefully considered the
statute and approved the same" In
proof ~ this statement he read from
tho Journal Of the House a report OF
the Judiciary Committee signed by
Mcrsrs Andrade. Haa and Mahelona.
.fr. Andradc. he further stated, when
asked which members Of the Supreme
court had considered and approved the
hnl answered. AN of them"
Approved of wh1t? the chief JUS
lice asked The policy. the validity OF
the effect ~ the Act7"
Justice Wilder intorjected; 1T was
never submitted 90 me and even II II
WIS ! don't soc anything IN that at
ndnvit that would disquaify me
Judge Gear said that. from the
/. statement ~ the Judiciary Committee
boz deemed " his solemn duty 10 raise
J rns question II the statement were
tfro ihat Juftlocs ~ that court cOn'
|, HdFed and approved nat statute be-.
/, tore ns passnFe, u would be- the righl
NJ fhe petitioner t0 object to the sltiinl
~ t1e sumo justices ln his ease inyoly
= mn 1s " did, the construction ~ thai
statute
The Cbiof Justice said he Was trylni
fp ffffesh his memory. bat could no
! rfr0iifft boz what form the matter wa
q submitted t1 him ITO hhd forgotten
fhe firruurf1nces N the interview
A bot ho 40 arpf0Ye ~ something lik
um Arf fff ho did not think II die
1uHiihfd him fudge dear having ar
rufd frfhtr fhf rbisf Justice asks
= hnH about me fOuffH construction an
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