The Hawaiian gazette., 1907-12-20
JUSTICES ARE NOT
DISQUALIFIED

Dl1QURLlffD
The Supreme Court yesterday hand
which it heard argument from num-
Der of attorneys the other day. The
question was whether under the Or
ganic Act a Justice of the Supreme
Court was disqualified to sit in a tax
appeal case by reason of being related
within the third degree OF consanguin-
ity to stockholders In a corporation
appealing from tax assessment. The
attorneys called in to argue the mat
ter were all of the opinion that such
relationship did not disqualify, and the
written by Chief Justice Hartwell.
The text of the opinion is as follows:
There are on the calendar of this
court twenty-seven cases, including the
above entitled cause, of appeals by the
Territory from decisions of tax appeal
courts upon the income taxes of COR
porations.
Owing to the fact, as it now appears,
upon suggestion by the court that two
of the justices of this court have rel
atives within the third degree of con-
sanguinity or affinity who own shares
of stock in one or more of these cor
corations, the court, before determining
whether the justices were thereby dis
qualified, requested preliminary argu-
ment on the question from the attor-
neys in the cases. The attorneys have
expressed the opinion, partly based on
construction of the statute and partly
! on decisions of several state courts
upon similar statutes, that the justices
are not disqualified and that it is their
duty to sit.
The question depends upon the mean
ing of the statute THAT no person
shall sit as a judge or juror in any
case in which his relative by affinity
or by consequently within the third
degree is interested, either as plain
tiff or defendant, or in the issue Of
which the said judge or juror may
have, either directly or through such
relative, any pecuniary interest" Sec.
81 Org. Act. A Judges pecuniary in
terest in the case or the mere fact
that a relative within the stated degree
is party, whether the judge has any
peouniary interest in the matter or not,
| disqualifies him from sitting. He is
also disqualified if through the relative
he has pecuniary interest in the is
sue of the case, but the fact that a
relative has a pecuniary interest does
not disqualify the judge under the
terms of the statute unless, owing to
the nature of the relation, in some way
he has a pecuniary interest through the
relative. as, for instance, in the case
of husband and wife, father and child,
or of an obligation, whether moral or
legal, to support the relative, or of
derived common interest due to any
cause. In all such instances and in
any case the existence of pecuniary
interest disqualifies. 1t may be that
when a relative is party his interest
is merely nominal or that he has no
pecuniary interest in the issue of the
case, but none the less the judge is
disqualified from sitting in such case.
In those cases the stockholders are not
parties, whatever their pecuniary in
terest in. the result of the cases may
be, so that the fact that justice is
related to them, as long as he him
self has no pecuniary interest in the
case, does not disqualify him.
According to the decision in many
of the states judgment by disqual-
flied judge is void and no jurisdiction
can be secured by consent. See cita-
tions II Enc. of Law, 742. Hence it is
highly important not only to observe
all disqualifying provisions of law but
that the disqualifications be clearly de-
fined by law in order to avoid uncer-
tainty in. the administration of justice |
1t is obvious that frequently a judge |
may, without knowing or having the /
means of knowing the fact, have a |
relative who holds stock in a corpora
ton which is party litigant in his |
court, and yet his knowledge or ignor- |
ance of the fact would be immaterial |
If its existence is a disqualification. 1t |
is certainly not desirable that upon
such inscrutable grounds judgments Of
courts should be liable TO be adjudged
to be utilities. We do not think that
the law requires or admits such causes
of disqualification.
Under the existing facts it is I'M
doubtedly true that the statute does
not disqualify the justices mentioned
and it is therefore their duty to sit in
the cases.
IN SUPREME COURT.
In the case of Oahu Railway & Land
Co. against James Armstrong, the mo-
ton by the plaintiff that mandate is
sue was yesterday morning granted by
the Supreme Court, the defendant Of
fering no objection to the granting of
the motion.
In re Father H. Valentin and the
Hawaiian Trust Co., Ltd, executors
and trustees under the will of John
Ena, deceased, against Maria K. Ena,
a case submitted on agreed state
ment of facts was yesterday argued
and submitted before the Supreme
Court.
In the matter of the estate of Au-
gustine Enos, deceased, an appeal
from the Circuit Judge, Second Cir
cult Set for this morning for argu-
ment.