DISSENTING OPINION OF
GALBRAITH, J.The reasons given against the judgment of disbarment in this case, ante, pp. 241, 242, 243, particularly that “that the findings of fact are not supported by credible testimony”, in my opinion, should be sufficient reason for 'ordering a rehearing. In addition to these the respondent presents two grounds in his application that are entitled to thoughtful consideration, namely, (1) That two members of the court were disqualified to sit in the case, (2) The contract of employment in the first instance offered as additional evidence and as throwing new light on the case.
If the first ground is well taken the judgment should be set aside without regard to the merits on the ground and for the reason that it “was not made by a court constituted as required *386by law”. Moran v. Dillingham, 174 U. S. 153, 158; Am. Const. Co. v. Jacksonville Railway, 148 U. S. 372.
In concurring in the judgment of the House of Lords reversing a decree of the Lord Chancellor on the ground that he was a .shareholder in a company interested in the. decree, Lord Campbell said, “It is of the last importance that the maxim that Ao man is to be a judge in his own cause’ should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.” “We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took a part in the decision. And it will have a most salutary effect on these tribunals, when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence.” Dimes v. Grand Junction Canal, 3 H. L., Cases 759, 792; Cooley’s Constitutional Limitations (6th ed.) p. 507.
I am assuming in the discussion of this question that neither of my associates were, as a matter of fact, disqualified to sit in the case, still, if, as a matter of law, either was disqualified the judgment of disbarment is voidable, if not absolutely void, and should be set aside.
It has been long recognized as good ground for recusation against a judge that he had a pecuniary interest in the issue to be tried either through himself or a near relative. This principle was recognized by Congress in framing the Organic Act for this Territory and is embraced in Section 84, as follows; “That no person shall sit as a judge or juror in any case in which his relative by affinity or by consanguinity within the third degree is interested, either as a plaintiff or defendant, or in the issues of which the said judge or juror may have directly or through such relation 'any pecuniary interest.” The respondent is possibly the only person who has any pecuniary interest *387in this suit. Certainly there is little if any ground for the claim that either of the judges had any such interest in the issue and are disqualified under the provisions of this section.
This, however, does not dispose of the question. It will be observed that section 84 places “a judge” and “juror” on the same plane in so far as the disqualification of that section is concerned and prescribes that each shall be disqualified when interested in the issue to be tried. It will not be claimed that this section is exclusive, or that there are no other disqualifications than that of interest when applied to jurors. Then can it be claimed with any more reason that there are not other grounds of recusing a judge than pecuniary interest in the suit?
This proceeding was not an appeal but was an original cause in this court. By it the original and not the appellate jurisdiction of the court was invoked. In disposing of it the court not only declared the law of the case but also found the facts to which the law was applied — thus exercising the functions of both court and jury. In this particular, at least, this case is different from the eases usually coming before this court. There was and possibly could not be any material division among the judges as to the law of the case but when it came to the findings of fact, or the things proved by the testimony, there was a material divergence of opinion and thus the exercise of the functions of the jury, in trial courts, was the most important part of the duties of the court in this case.
In the trial of this kind of a cause is it unreasonable to hold that anything that would disqualify a juror in the case if it were tried to a jury in a nisi prius court would disqualify a judge from sitting in the case? If the respondent were sued in an action of debt for more than twenty dollars his right to a trial by an impartial jury of his countrymen is guaranteed by the Seventh Amendment to the Constitution of the United States. By the judgment in this case the respondent is not only deprived of something of much greater value than twenty dollars, namely, the right to make a living for himself and family by the pursuit of his occupation but also something which, in the words of Holy Writ, “is rather to be chosen than great riches.” Can it be *388supposed for a moment that he has not the absolute right to have the facts i'n a case of such great importance to him passed upon by judges whose minds are free from bias or prejudice ? Has he not the right to recuse a judge in the trial of such a cause for the same cause he might challenge a juror if the case were on trial before a jury? I submit that he has.
One of the charges found established against the respondent was blackmailing the Oahu Railway & Land Company out of five thousand dollars. Hr. Dillingham, who acted for the company in the transaction, is the father-in-law of the Chief Justice and the Chief Justice is also a stockholder and the trustee for the bondholders of the Oahu Railway & Land Company. Could the Chief Justice approach the consideration of this case with the same impartial and unbiased mind that he would had the respondent been charged with blackmailing some other person or corporation with whom he was not so closely connected ?
Hr. Justice Perry has heretofore punished the respondent at three several times for contempt of court — one sentence being for a term of ten days in jail. Could Judge Perry at the hearing of these charges give to the defendant the full force and effect of the presumption of innocence that the law requii’es until his guilt was established by competent evidence? Certainly jurors similarly situated when drawn in a trial would be subject to a challenge for cause. The denying of such a challenge under such circumstances would be safe grounds for a new trial.
“Justice requires that the judge should have no bias for or against any individual, and that his mind should be perfectly free to act as the law requires.” Bouvier, “Bias”.
An early case wherein a non-freeman was convicted for violating a by-law- or ordinance of the City of Chester forbidding any but freemen to keep shop or expose any goods for sale in said city is instructive in this connection. At the trial the defendant challenged the array of the panel because it had been arrayed by the sheriffs who were citizens and freemen of the city. This was overruled and in like manner a challenge to the “polls” because the jurors were citizens and freemen of the *389city. The defendant was convicted and on appeal this judgment was reversed and a writ of error was sued out. Lord Mansfield in affirming the judgment- of reversal and holding that the challenge to the polls was good on the ground of interest said, in part, “The exclusion of foreigners is a monopoly to the freemen themselves. The enforcing of this exclusion, by by-laws and penalties, is securing that monopoly. And in this action, the very freemen who were to gain by securing this monopoly, were the jury to determine it. Therefore every freeman had an interest and bias in the matter of the issue to be tried in this cause. It is no answer to the objection to say, That they were to have no part of the penalty’; for still they had a bias upon them in relation to the question to be tried. Whatever the action may be, if jurors be interested in any of the matters in issue, he is unfit to try them. The incapacity arises from his bias in the particular facts he is to try; and whatever be the facts which that bias touches, he is incapable of trying those facts”: Hesketh v. Broddock, 3 Burrows, pp. 1847, 1857. And again on the question of interest the same distinguished authority says: “The law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the passions of mankind in the decision of any matter of right. If, therefore, the sheriff, a juror, or a witness he in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity, or pervert his judgment ; and therefore will not trust him. The minuteness of the interest won’t relax the objection. For the degrees of influence can’t be measured; no line can be drawn, but that of a total exclusion of all degrees whatsoever.” Id., p. 1846.
“Interest, in the issue to be tried, is a good and sufficient ground of challenge to a juror; so interest, in the question to be determined by a judge in this court, is a good and sufficient disqualification. No man can sit in judgment in his own case. Natural reason and natural justice forbid it, and so does the common law. No matter how slight the interest which a juror may have in the issue; if he has any, the common law will not permit him to try the cause — so with a judge.” Trustees Int. Imp. Fund v. Bailey, 10 Fla. 213, 230.
*390“The law carefully guards not ouly against actual abuse, but even against the appearance of evil, from which doubt can justly be cast upon the impartiality of judges, or respect for their decisions may be impaired.” In re Didge and Stevenson Mf’g. Co., 77 N. Y. 101, 110.
If it were possible that each of my associates could and did approach the consideration of this case free from bias, still the law which considers the weakness and frailty of human nature regards such a thing under such circumstances as impossible. If the right to urge this ground of recusation was waived by failure to raise it before or pending the hearing still it has been raised on this application and in order to avoid the appearance of having failed to render full justice to the respondent it should have great weight in inclining the court towards granting a rehearing.
The second ground was the additional evidence offered by the contract for fees. It is claimed that this contract was lost and was not found until after the decision in the case and, through inadvertence and inability it was not produced at the hearing. The contract is alleged to have been prepared by one of the counsel associated with the respondent. This contract is as follows:
“This Agreement made between Maria S. Davis, of the First part, R. W. Davis, of the second part, G-eorge A. Davis, of the third part, 'and Magoon & Peters, of the fourth part,
Witnesseth: “That said parties of the first and second parts hereby agree to give to said parties of the third and fourth parts one-third of all sums of money, evidences of indebtedness, choses in action and property recovered by them and each of them or to which they and each of them may be entitled or which they and each of them may receive in the matter of the suit now pending in the Circuit Court of the First Judicial Circuit in the matter
R.W.D. G.A.D. M.S.D. of J.A.M. The Oahu Railway & Land Co. v. John K. Sumner, et al., the case of John K. Sumner by his next friend Maria S. Davis v. The Oahu Railway & Land Co., and in the matter of the petition for guardianship of John II. Sumner, and all proceedings that may be incidental thereto, or growing out of all or any of said matters,
and they also agree to give a like one-third of whatever property *391or benefits they and each of them may receive from the Estate of John K. Sumner during his lifetime or after his death by way of devise, inheritance, or in any other manner, upon all of which said parties of the third and fourth parts shall have a lien Clerk and first charge upon all sums of money, claims and J A T ProPerty received by said parties of the first and second ' ‘ ‘ ‘ parts and each of them as hereinabove set forth.
“And they further agree to pay all costs of court in said suit or matter or in any other suit or proceedings which may be brought in the premises.
“And said parties of the third and fourth parts hereby agree to give their professional services in said matter or matters until final adjudication in the Supreme Court of the Territory of Hawaii and receive as full compensation therefor said one-third to be paid to them as aforesaid for all services which may be rendered in the matter; said one-third to be divided between them as follows: Said party of the third part an equal one-half of said one-third, and said parties of the fourth part an equal one-half of said one-third.
“And said parties of the first and second parts hereby covenant and agree that they will not settle said matter with said John K. Sumner or with any other persons excepting with the full and free consent of said parties of the third and fourth parts thereto obtained in writing, nor will they submit to the withdrawal of said proceedings that are now before the Court or any other proceedings that may be brought in the discretion of said parties of the third and fourth parts without such consent in writing of the parties of the third and fourh parts.
“In Witness Whereof said parties do hereunto set their hands and seals this 30th day of December, 1902.
“Mama S. Davis,
“R. W. Davis,
“Geo. A. Davis,
“Magoon & Peters."
This contract, possibly, would not have established respondent’s innocence of the charges against him if it had been produced and given in evidence at the hearing. But it does tend to disprove one of the charges found against him, namely, that he did “impede, hinder and delay a settlement of a suit that his client was willing to make” without right so to do. It further tends to prove that the other attorneys who signed this contract *392with respondent were guilty of gross abuse of the process' of the courts in malting" a contract for fees for one-third of the amount that might be recovered in an injunction suit and one to declare a man non compos, when the legitimate object of neither suit was to recover money, nor could either suit have resulted in a money judgment if prosecuted in good faith to final judgment..
This contract certainly tends to demonstrate one further fact, namely, that the court has not done full and complete justice in this case although the respondent may be guilty as found and also that full and complete justice will not be done in this case by disbarring the respondent and permitting, the two attorneys associated with him in the enterprise to go unscathed. The Court ought to re-examine the charges in the light of this new evidence in order to make sure that no innocent man is punished and that no guilty one escapes.
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