CONCURRING OPINION OP
HARTWELL-, J.The plaintiffs’ counsel, for whom I argued about two years since a motion for rehearing of his exceptions, insists that I am not thereby disqualified from now sitting in the case and that therefore it is my duty to do so. This is denied by the defendants’ counsel who insists that it is my duty, under the circumstances, to decline.
It is not expected that argument will be presented in any of the matters brought up by the writ of error which were passed upon by this court in overruling the exceptions. As far as those matters are concerned if a writ of error lies, following a bill of exceptions, the judgment, below would be affirmed as a matter of course. As to new grounds of error, not passed upon in connection with the bill of exceptions, I am conscious of no bias or prejudice which would influence my consideration of them, but I should be very glad to be allowed to retire; not because I think that injustice would result to either party by my remaining but because a decision that I am not disqualified, under the circumstances, would be a precedent in all cases in which a justice had formerly been of counsel, to whatever extent he had participated in them, excepting only cases which involved a pecuniary interest, which is a constitutional disqualification.
No distinction can be made between circumstances which do and do not disqualify in case of a former relation as attorney and client. The fact of being retained establishes that relation and would incur the danger of favoring the client or of giving that impression as fully as when advice was given, argument made and sympathies or antagonism aroused. Love v. Love, therefore, ante, p. 194, which held that a member of this court was not disqualified because his law firm had been retained for one of the parties, he himself having taken no nart in the case, is a precedent in this case, or else was wrongly decided and ought to be disregarded. It is for no other reason than to avoid *400danger of favoritism, as a result of bias, from whatever cause, or of giving the impression of favor, that the former relation of attorney and client is regarded as a disqualification. But bias or prejudice, although a cause of disqualification in many jurisdictions, is not so at common law or in Hawaii. It may exist in many instances, as, for example, in cases of intimate friends or opponents or in a case, the issue of which as precedent, would affect their interest or those of the judge himself although not in pending or impending cases. Danger of favoritism, under such circumstances, is greater for the very reason that it is less conspicuous. It is true also that it is not so much conscious bias or prejudice as unconscious cerebration, which the judge himself does not recognize, that may affect his impartiality. It is upon these considerations that when the relation of attorney and client disqualifies a judge he is not permitted to sit in the case although the parties may waive the objection and request him to do so.
Hpon the whole, then, it seems to be clear that the disqualification, if it exists, is imperative and cannot be waived. In all such cases either the judge must retire from them or must sit in them. He has no discretion to do the one or the other as may seem to him, as well as to the attorneys, to be just and appropriate. The question presented is extremely difficult to answer satisfactorily. The conclusion which I have reached, in concurring as I do in the opinion of the court as stated by Mr. Justice Wilder, is based upon considerations of constitutional law from which I do not feel at liberty to depart.
Until the decision in Love v. Love, supra, the right of this question had not been adjudicated, no controversy concerning it having been presented, although since the act of 1892, which provided for substitute judges, it was uniform practice that a justice who had been of counsel retired as a matter of course and a substitute judge was called in his place. Prior to that act, and more especially before the number of justices was increased from three to five by the act of 1888, there were occasional exceptions in the practice, although I cannot specify them. The risk of a failure of justice in case of disagreement was more *401obvious during the years prior to 1877, when Chief Justice Allen was minister to Washington, and was avoided in exceptional cases by a waiver of the objection. It was then considered doubtful whether this was a strict disqualification and also,, if it was, whether it could be waived. It was generally supposed, however, that the matter was discretionary with a justice to sit or not. All the constitutions of Hawaii, as well as the Organic Act, make relationship, pecuniary interest and former judgment causes of disqualification. The constitution of 1887,, followed by that of 1894 and the Organic Act, restricted relationship to the third degree and added affinity.
The decision on the question is not to be made by mere construction of law and does not depend upon the theory that; enumeration of certain causes of disqualification implies that others are intentionally omitted, for the theory expressed in the maxim expressio unius est exclusio alterius is not a rule of law,. ■ — -the intention in such instances is merely inferential. The decision of this question rests upon something more than inference. Constitutional authority for a justice to refuse to perform his judicial functions must affirmatively appear or else he is at liberty to exercise his own discretion in refusing or consenting to perform them for reasons which appeal to himself and to his colleagues, as well as to the attorneys in the case, to be good reasons although not authorized by law. The law, however, does not permit such exercise of discretion. The Organic Act, which is our constitution, requires that “the supreme court shall consist of a chief justice and two associate justices,” with the proviso that “in case of the disqualification or absence of any justice thereof his place shall be filled as provided by law.” The statute provides for calling in a circuit, judge “who has not been connected with the case as counsel or-in an official capacity,” and, as amended in 1903, “who is not otherwise disqualified.” This amendment was made, I think at my suggestion to a committee of the bar association to whom the hill was referred, because of an impression, which I now think was unfounded, that other causes of disqualification than, those which were named in the law might exist. But constitu-*402tional law cannot be modified by the amendment or by any statute. The requirement that only such circuit judges can be called in who have not been connected with the case as counsel or in an official capacity does not imply that justices of the supreme court are subject to the same requirements.
If any former official connection with a case disqualified justices of this court it would be impossible to obtain rehearings of the same ease presented under any circumstances. The reason why the statute excludes substitute judges who have been of counsel and does not make the same requirement of justices of this court may well be that it was thought that the legislature had no power to add to the disqualifications made by the Organic Act or that, if there were such power, it was unwise to make a rigid rule applying to them. Whatever the reason, however, the disqualification is not extended beyond circuit judges.
The disqualification referred to in the proviso of the Organic Act (Sec. 82), as well as in the statute (Sec. 1634, R. L.), is either the disqualification which is expressed in the act or else it is one which is undefined by law. Taylor v. Williams, 26 Tex. 587, held: “Where the constitution has only prescribed that the judge’s professional connection with the case, in the •single instance where he has been ‘oí counsel in the cause,’ .shall disqualify him from presiding upon its trial, we cannot undertake to say that his professional connection with a similar cause or one involving the same questions shall have that effect. If we depart from the plain language of the constitution, we shall be left without a rule for our guidance, and shall countenance a laxity of construction that may prove both dangerous and inconvenient.” And so 121 Mo. 514; 83 Cal. 589; 103 Ib. 397; 123 Ib. 453. Moses v. Julian, 45 N. H. 52, held that .-a probate judge could not pass tip on a will drawn by himself while on the bench, under the constitutional prohibition of any judge acting as attorney to any party or “as advocate or •counsel in any probate business which is pending or may be 'brought into any probate court in the county of which he is judge.” While holding that “the prohibition of the constitution applies to this case,” the court went on to say that the *403judge was disqualified on the principle of “bias or prejudice in favor of or against one of the parties.” State v. Hocker, 34 Fla. 29, held that a judge was disqualified in a case in which he had been of counsel, upon the principle that “no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent,” citing decisions in Massachusetts, Michigan, Texas and New Hampshire based upon constitutional or statutory provisions. The Florida decision might have been based upon a statute that if a party files an affidavit “that he has reason to believe that he cannot obtain justice from one or two of the judges of such court by reason of the prejudice of such judge or judges then such judge or judges shall be disqualified to sit in such case.” Ten Eick v. Simpson, 11 Paige 177 (1844), held that the vice chancellor could not properly pass upon an appeal bond in a case in which, before his appointment, he was of counsel, the court saying that the principle was the same “which this court applied to the case of a master who had acted as the counsel for one of the parties in a prior stage of the suit, in the case of McLaren v. Charrier, 5 Paige, 530,'” and that “it is the same principle which disqualifies a judge from acting as such in a cause in vhich he has been, at a previous time, the solicitor or counselor of one of the parties.” But the case of the master, who had acted as counsel prior to his appointment was within the statutory prohibition, 2 Rev. St., N. Y. 275, Sec. 6, a later statute providing that “No judge shall have a voice in the decision of any cause in which he has been counsel, attorney, or solicitor, or.in the subject-matter of which he is interested.” Laws of N. Y., 1847, Ch. 280, Sec. 81. In Walker v. Rogan, 1 Wis. 511 (1853), there was no controversy concerning the disqualification of the judges who declined to sit by reason of having been of counsel, but in Morgan v. Hammett, 23 Wis. 31 (1868), the court held that a county judge who had been of counsel for parties interested in an administrator’s sale of real estate was not thereby disqualified from acting upon an application for a license to sell, the court saying: “An examination of the various provisions of our statute bearing upon this subject has convinced each of *404us that this view must prevail.” It appears that at the date of these decisions “The 20th section of chapter 87, and the 11th section, on page 761 of the Revised Statutes, deprives the judge of the Circuit Court absolutely of all jurisdiction in any cause pending before him in which he is interested, or where he shall have acted as counsel for either of the parties.” Hungerford v. Cushing, 2 Wis. 293. The decisions cited had statutory authoi ity with the exception of that one which was shortly followed by a statute, while in this jurisdiction the only adjudication is that the relation per se does not disqualify.
There is no authority in the Organic Act for refusing to sit in such cases as this. The act fixes the constitution of the court in all but the cases therein named.