Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1906-03-15

rarely happen. II has not happened
60 fer as know, during the ffty.nine
years covered by our reports. n Il
should happen occasionally, that would
be lncomparably better than the alter.
native that members Of the court
should sit In all cases In which thew
have been OF counsel-as they would
be required to do under our statute, II
II is valid, unless both parties consent
to a hearing by less than three judges.
Says the opinion of Justice Wilder
Ia part:
This Is a writ of error to the Cir.
Iuii Court of the Fourth Circuit. On
o motion to quash the writ defendants
Ia error claimed that Mr. Justice Hart.
well was disqualified by reason of hav.
sLg acted as counsel for some of the
Eartios In. and taken an active part in
some previous stages OF, the case.
Plaintiffs In error contended that there
was no disqualification either on the
E.piu case or on the motion to quash.
"Of late years II has been the com.
mon practice for justice of this court
" refuse to sit In O case where the
slightest suggestion was made as to
his having formerly been OF counsel in
the cause. This practice has been
checked and disapproved of by the rul
ing OF this court in the recent case OF
Love V. Love, II Haw. 1874, which. SO
tar as appears, was the first time the
matter was ever contested and adjudi
cptsd, where IL was held that justice
Of this court is not disqualified to sit
IN case by reason OF having been
counsel of record as a member of q
pei tnership which had been retained
In the case, he having taken no active
TART in the case nor advised upon the
guestions at issue. No opinion was
expressed as to disqualification in
1850 ha had taken an active part In
the matter and advised in regard tc
tho questions nj issue. The latter
question being squarely up for deci
zion in this case, 1t must be decided
according 10 the law irrespective Of
What the court thinks should or ough
" BE- the practice"
Il is shown further that the statutes
In the matter of the disqualification
Of Supreme Court Justices contain M
provision by which Justice is dis
qualified because he has been an attor
hay IN the case, but only state that
liiigant is entitled to a trial by the full
court unless n Justice is disqualified
ar prevented by illness, etc, while thu
Organic Act only debars Justice II
cases where he is related to the lit
gents or in which he may have a pc
tunisry interest. The opinion theI
sGys:
"As we find there is no legal disqual
NC alton. a Justice of this court, from
q sense OF delicacy or personal feeling
las no right to withdraw from sittinI
u. q case. because, II there is no dis
Qualification or other reason mention
ed in the statute, a Circuit Cour
Judge cannot be called in and tn
case cannot be heard. as the partie
Gre entitled TO hearing before
bench of three members.
II is the opinion of this court tina
Mr.. Justice Hartwell, on the fact
stated. is not disqualified from SIT
ting In this case either on the merit
o. the motion to quash."
Justice Hartwell concurs with Wi
der aud states as follows, in part:
passed upon In connection with III
bill OF exceptions, am conscious G
no bias or prejudice which would Unfit
cncs my consideration Of them, but
should he very glad to be allowed {
/ retire: not because | think that injul
tice would result to either party b
my remaining, but because decisio
that am not disqualified, under tn
circumstances, would be preceden
In all cases in which a justice had TO
merry been OF counsel, TO whatever e,
tent he Lai participated in them, e!
, cGpiins only cases which involved
, lpecupiary interest, which is a const
tutipnal disqualification.
no distinction can be made b,
tween circumstances which do and
rot dlgquahfy in case of former rel
ton US attorney and client. The fa'
Of being retained establishes that r
| latlGn and would incur the danger {
favoring the client or OF giving that In