Dissenting Opinion op
Dole, J.It is my opinion that the contract in this case is not enforceable for the reason that it is not a contract between the parties. It is, in brief, a contract between the Hawaiian Government and the defendant, in which the latter substantially agrees to labor for such master or masters as the Hawaiian Government shall select, although this purpose is skillfully veiled in language which dwells somewhat conspicuously upon the guarantee of the Hawaiian Government to furnish the defendant wifh employment. The contract binds him to accept such employment as the Hawaiian Government may assign him to, in other words, to accept such master as the Hawaiian Government may select for him, and if he objects, to abide by the decision of the Bureau of Immigration, a bureau of the Hawaiian Government.
On the back of the contract is endorsed an agreement between the Board of Immigration and the Hilo Sugar Company, dated over two weeks after the original contract, by which the defendant is handed over to the Hilo Sugar Company, and they stipulate to carry out the covenants made by the Board of Immigration in favor of the defendant in said contract. As a matter of fact there is no such contract, the original contract being between the Hawaiian Government and the defendant, who is not a party to this agreement, assigning him to the Hilo Sugar Company. So we have before us the case of a laborer held for service under a contract, penally enforceable, if enforceable at all, to masters with whom he has never contracted; but he has come into their hands, without having the opportunity of choosing his employers, by a process suspiciously similar to that by which a Hono*209lulu hack, horse and harness are hired out to a driver. The fact that the laborer receives proper wages for his work does not take the case out of that condition of involuntary servitude or semi-slavery which is inconsistent with our Constitution and laws, and with the general tenor of the decisions of this Court, with one or two solitary exceptions.
The case of Nott vs. Kanahele, 4 Hawn., 14, is, I admit, distinctly opposed to the above view, but I believe that decision to be wholly erroneous. That was not, however, as evident a case against personal liberty as the one before the Court, as the plaintiffs were the original contractors, and, having sold their plantation, they brought the suit to compel their laborer to work on the plantation they had sold, he having agreed by his contract to work for their assigns in case of a sale. But in the case before the Court there is no privity whatever between the parties j the plaintiffs are the purchasers of the defendant’s contract at cost from the Hawaiian Government.. This is, I think, the clear common sense view of the transaction, in spite of the strenuous avoidance of any appearance of such a meaning in the language of the instrument.
It sometimes happens that, in the final settlement of a legal question, the best law is found in a dissenting opinion. This is, I think, the case in Nott vs. Kanahele, and I desire to quote briefly from the dissenting opinion in that case of Mr. Justice Judd:
“The words of Section 1417 (Civil Code) above quoted, ‘any person * * * may bind himself to serve another,’ means that he may bind himself to serve an individual who is ascertained and known to the laborer at the time of making his contract, or who could be ascertained by the laborer if he made inquiry. This section does not authorize a man to make a contract to serve one who is wholly unascertained, or who is to be ascertained independently of the servant’s will. The policy of our institutions and laws forbids the making of such contracts,” (p. 17).
“There is no enactment of the Legislature that will compel a man to work for another or his assigns,” (p. 18.).
*210“If a man could be passed from one to another, like a chattel, by an assignment of his contract, it reduces him at once to a chattel, and this is a form of involuntary servitude which, though for a limited period, is nevertheless repugnant to the policy of our institutions and forbidden by Article 11 of the Constitution” (of 1864), ( p. 18-19).
“If a contract, that is, an agreement by which one person binds hinself to serve another, is in its essence and nature unassignable, the law will not allow a laborer to make a contract which is in its terms assignable. He cannot make an engagement which is illegal and inconsistent with the liberty which every man has of choosing his own employer. He may not so barter away his freedom in advance.” (p. 19.)
It would not be easy to improve on the wording of these citations in stating the prevailing legal sentiment of the civilized world on this question. This position is supported by Waihee Plantation vs. Kalapu, 3 Hawn., 760; Dreier vs. Kuaa, 4 Hawn., 534, and In re Gip Ah Chan. 6 Hawn., 25.
In Dreier vs. Kuaa the Court say, (p. 536): “We cannot direct the defendant’s labor on this plantation, for he (Dreier) has no interest in it; there is no privity of contract between these laborers and the owner of the Koloa Sugar Company, and therefore the defendants cannot be compelled to work on this plantation.”
The case of Gip Ah Chan was tried in Chambers before Mr. Justice Hartwell, in 1870, and his decision contains the following language, (p. 41): “I do not regard that a contract is enforceable under this penal statute and within its meaning, unless it is in writing, designating^ the parties either by name or in such a manner that they can be ascertained precisely at the date of the contract. It is unnecessary to comment on the wisdom of a statute restricting the enforcement by penal servitude of contracts for labor to those which are made in writing with another, or with a firm, or on considerations which might arise on a law which allowed the penal enforcement of contracts between parties not named or ascertained at the date of the contract.”
F. M. Hatch, for plaintiff. D. L. Huntsman, for defendant.The liberty of choosing one’s own employer is undoubtedly within the inalienable rights guaranteed to “all men” by Article 1 of the Constitution. How, then, can one alien dispose of such liberty? A contract waiving this right is inconsistent with this great provision of the Constitution, and is therefore illegal and void. This is what the contract before us distinctly does.
I am also of the opinion that the instrument requires to be stamped. This requirement is clearly set forth in the statutes, and no exception is made. Chapter 55 of the Laws of 1876 requires this, and provides that “no instrument requiring to be stamped shall * * * be of any validity in any Court of this Kingdom unless the same shall be properly stamped.” (Section 9). And Chapter 30-of the Laws of 1886 provides that any agent to take acknowledgments of contracts “who shall certify to the acknowledgment of any contract not fully stamped shall be liable to a fine” of fifty dollars.
The argument of plaintiff’s counsel that the Government, being the employer, would have to pay for the stamps, and therefore the Stamp Act does not apply to this contract, is not convincing to my mind. In fact, the Government is not the employer, nor does the contract pretend that such is the case. The Government has no work for these men, no plantations upon which to employ them; it is merely the channel through which the laborer reaches an employer. The contract is inchoate by its terms until it has been supplemented by the endorsement which provides an employer, and he, by law, is liable to stamp duty.