The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-16

otherwise disqualified implying, the
Chief Justice comments, that having
been Of counsel was a dIsquanaca-
| ton"
AN ANCIENT PRACTICE.
Chief Justice Frear goes on TO say
! that ..what would seem 10 be conclu-
| sive in tais Jurisdiction
! oeen Of counsel has become establish
ed as a disqualification by the COM
! mon law of Hawaii as shown by usage
i and judicial precedent. As stated in
the Florida and New Hampshire cases
above mentioned with respect 10 their
reports and records, our reports and
records are full OF entries recognizing
the relationship of counsel as a dis
qualification"
He proceeds to indicate ffty-four
Hawaiian cases covering a period from
1853 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 in ques-
ton was held disqualified for the same
reason that is now urged
REPEATEDLY DECIDED.
- AAe~A -'''t CA4RS DSclI Tue pt 1Ctltc,
but there had been repeated adjudica-
lions Of the question. In only the Love
and the Motley case had il been con-
tended that the justice who had been
counsel in the case was not disquali-
fled. Ever since the eighth volume
of reports the decisions showed that
the justices in question cid not sit
| because disqualified" instead of be-
4 q Tiaa inc, to r
! case may have gone too far IF it
did, it should be overruled If it did
| not. it went at least far enough and
| should not be extended"
OLD HAWAIIAN Law.
The Chief Justice regards some of
Justice HartweIPs authorities as not
| in point. and shows that the provision
of the Organic Act, cited by the ma
jority as excluding all disQualiications
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 it borrows
also the construction put upon it 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 5 Ops
Atty. Genl. $50; Schooner Robert Lew
ers VS.. Kekauoha, ia Fed. S49; Car
ter VS.. Gear. 1877 u. s. 348; 16 Haw
242. There is no doubt, as shown by
the list of Hawaiian cases set forth
above. that this section has not been
regarded III the past as exclusive The
question whether it was exclusive has
often been suggested by the court, but
except in Love VS.. Love and the pres
ent case counsel have not seen ut to
press the argument, and it has not
been acted on. The question being
one at least of doubt and the statute
having been acted on as not -exclu-
s1ve III SO many cases both before and
since the enactment of the Organic
Act. and this construction being one
which is highly desirable and which is
in conformity with prevailing senti-
ment elsewhere, as shown by con-
stitutional and statutory provisions as
well as by remarks of courts, it seems
to me that we should adhere to it.
There is, it is true. possibility
under this view that in some cases
all the members of the court might
be disqualified and consequently that
such cases could not be heard unless
on the theory that a disqualified judge
may sit in case of necessity. but that
contingency might happen under any
other disqualification and would in
any event rarely happen. 1t has not
happened, so far as 1 know, during
the f1fty-nine years covered by our
reports. If it should happen OCCASION
ally, that would be incomparably bet
ter than the alternative that members
of the court should sit in all cases in
which they have been of counseI-as
they would be required to do under
our statute, if it is valid. unless both
parties consent to a hearing by less
than three judges
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