DISSENTING OPINION OF
FREAR, C.J.The question is whether a member of this court is disqualified to take part in the decision of a case in which he was actively engaged as counsel before his appointment to the bench. It has been decided in Love v. Love, ante, 194, that'a member is not disqualified from the mere fact that he was of counsel of record in the case as a member of a partnership that had been retained, but in which he had taken no part and given no advice.
It is commonly stated, and no doubt correctly, that having been of counsel was not an absolute disqualification at common law, although the cases in support of this statement are com paratively few in number and as a rule of an unsatisfactory nature. But it is everywhere held, in both England and America, that it is extremely desirable to avoid not only the evil of bias and prejudice on the part of a judge by reason of his having been of counsel, but also the appearance of such evil, and that a judge who has been of counsel should as a matter of propriety at least decline to sit except in a case of necessity, as, for instance, when the court consists of only one judge and there is no provision for a special or substitute judge. This probably accounts for the paucity of decisions on the question, for as a fact judges have generally declined to sit when they have'been of counsel. Indeed, such has been the consensus of opinion as *405to the impropriety of a judge sitting in such a case that, to quote from 17 Am. & Eng. Enc. of Law, 2d Ed., 739, “At the present time * * * it is usually if not universally provided in the constitutions or statutes of the different states that one who has been of counsel in the case may not act as judge.”
In some cases the mere fact appears that one who had been counsel of record at one stage of the case has taken part as a member of the court in deciding the case at a later stage, no question being raised. In other cases there are mere dicta to the effect that having been of counsel is not a disqualification. In some cases the court has apparently not cared to take the broad ground that that would not be a disqualification, but instead has confined its decision to the precise facts of the case and held, for instance, that the judge was not disqualified merely becáuse he had been of counsel for the same parties in other matters. See Carr v. Fife, 156 U. S. 494, 498; In re Neviit, 117 Fed. 448, 452. Some cases, however, intimate strongly or actually hold that, even in the absence of constitutional or statutory provision, having been of counsel is an absolute disqualification. In Walker v. Rogan, 1 Wis. 511, decided forty-five years before the statute expressly made it a disqualification for a judge of the supreme court to have been of counsel, two of the three judges declined io sit because they had been of counsel. “The obvious consequence was,” as the court stated (p. 519), “that the cause must remain undetermined until the constituent members of the court should be changed, or until the legislature should provide for the contingency, or unless the parties should, by stipulation, obviate the difficulty.” The difficulty was obviated by a stipulation that the case might be heard and decided by the third judge sitting alone. In this Territory the statute provides for special or substitute judges in case regular judges are disqualified. R. L., Sec. 1634. In Tampa S. R. & P. Co. v. Tampa S. R. Co., 30 Fla. 595 (17 L. R. A. 681), the court said, among other things in holding that a judge who had been of counsel would be disqualified: “In reaching the conclusions announced above we have not overlooked the fact that there is now no statute in this state *406expressly declaring that the previous relation of counsel to a party to the cause in the matter in controversy shall disqualify a judge, nor the further fact that there are decisions which intimate or affirm the view that such relation does not disqualify. * * * It has always, so far as we know, been the practice of the circuit and supreme court judges to refuse to sit in cases in which they have been of counsel to either of the parties. * * * The records of the courts of this state are full of orders and entries made, * * * recognizing the stated relation as disqualifying a judge; and that it does have this effect here is as fully settled by years of unvarying recognition and enforcement as any other principle of law, and we have no hesitation in affirming either its propriety or its binding force upon the supreme and circuit courts and judges.” That ruling was followed in State v. Hocker, 34 Fla. 29 (25 L. R. A. 117, and note). In Moses v. Julian, 45 N. H. 52, which contains the fullest discussion of the whole subject of disqualifications of judges, the court said: “Among this class of disabilities (friendly or hostile relations) is that chiefly in question in this case, the fact that the judge, as is alleged, has acted as counsel for the party in the same cause; which has always been held everywhere' to justify the supposition and belief that, however upright he may be, he cannot avoid favoring the cause of his late client. It is consequently everywhere a just cause for the judge to withdraw, or for the party to recuse him. * * * Our own reports abound with entries that --•, J., having been of counsel, did not sit, and the dockets furnish evidence abundant that the law which called for such entries was recognized and acted upon long before we had reports. * * *' It seems to us very clear, that, a fortiori, the acting as advocate and giving of counsel in a case, whence a cause in court may spring up, after the judge has received his appointment, must be good cause of disqualification as a judge, independent of any statutory enactment. It is the fact that the judge has acted as attorney, counsel, law advisor or advocate, in relation to th'j business in hand, that furnishes the just cause of exception, without reference to the time when such aid or counsel was *407given.” The court regarded the general constitutional provision, referred to in the majority opinions in this case, as a mere statement of a common law principle inserted in the constitution to avoid doubt or to prevent the legislature from repealing it. There were other specific constitutional provisions which applied to that case, but not to cases in which a judge-had been of counsel prior to his appointment. In Ten Eick v. Simpson, 11 Paige 177, decided three years before the statute on the subject, Chancellor Walworth said: “I am not prepared' to say that any provision of the revised statutes prohibits the vice chancellor from approving the appeal bond, in a case in-, which he was solicitor or counsel previous to his appointment to office. * * * The principle, however, 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’s Rep. 530,) seems to be equally applicable here. It is the same principle which disqualifies a judge from ácting as such, in a cause in which he-has been at a previous time the solicitor or counsel of one of the parties. In such cases he should decline to act, in his judicial capacity, in any matter requiring the exercise of judgment or judicial discretion; unless in a case of necessity and to prevent a failure of justice, as in a case where there is no-other judicial officer who has the power to do the act required to be done by him.”
There is greater reason here than elsewhere for holding a_ judge disqualified by reason of having been of counsel because-the statute, if it is valid, deprives the members of the court of the power and duty, which is always recognized in connection with the common law rule, to decline as a matter of propriety to sit except in rare cases of necessity. The statute makes it the duty of a member of this court to sit in all cases-in which he is not absolutely disqualified or absent, for it provides (R. L., Sec. 1634) that parties shall be entitled to a hearing before all the justices, and may not be compelled to go to trial before less than the full number thereof, with the proviso-that in case of the disqualification or absence of any of the jus*408tices in any particular case his place may be filled by a circuit judge; and it would not be competent for the legislature to authorize a special or substitute judge to take the place of a justice of the supreme court except in a case of disqualification or absence. See Org. Act, Sec. 82. This statute, moreover, seems to recognize that having been of counsel is a disqualification, for it provides that the circuit judge who fills the place of a disqualified or absent supreme court justice shall be one who has had no connection with the case as counsel. It might be contended, from the fact that this is specifically mentioned in connection with substitute judges, that it was supposed or intended not to be the law in regard to regular members of the court, but a different view of special provisions of this general character has been taken by other courts. For instance, in the Florida case above quoted from, the court held that a somewhat similar statute “merely recognized such relation of counsel and client as one, among many, causes of disqualification.” Likewise in the New Hampshire case above cited the court .held that the statute which related to only one court “must be regarded as a legislative recognition of the common law applicable to all judges and judicial officers.” So, in the Wisconsin ease referred, to, the statute at that time applied to the circuit courts only. Moreover, our statute, as amended in 1903, after stating that the substitute judge or judges should have had no connection with the case either as counsel or in an official ■capacity adds, “and who is or are not otherwise disqualified,” ■thus implying that having been of counsel was a disqualification.
But what would seem to be conclusive in this jurisdiction is that having been of counsel has become established as a disqualification by the common law of Hawaii as shown by usage .and judicial precedent. As stated in the Florida and New Hampshire cases above mentioned with respect to their reports .-and records, our reports and records are full of entries recognizing the relationship of counsel as a disqualification. The following are some of the eases in which a member of this court has not sat because he had been of counsel: 3 Haw. 85; 5 Haw. 456; 7 Haw. 4, 12, 129, 226; 8 Haw. 40, 93, 330; 9 Haw. 1, *40923, 43, 75, 101, 121, 151, 166, 335, 337, 412, 417, 514, 566, 10 Haw. 319; 11 Haw. 272; 13 Haw. 4, 28, 138, 328; 14 Haw. 399; 16 Haw. 45, 53, 66, 113, 185, 282, 476, 485, 489, 502, 535, 544, 564, 567, 585, 605, 638, 660, 674, 685, 702, 737, 761; 17 Haw. 41. These fifty-four cases cover a period extending from 1868 to the present term. In some, especially those decided in the last few years, the particular ground of disqualification is not set forth in the report, although shown in the record of the case. The list does not include all the cases in which members of the court have not sat because they had been of counsel. The frequency of such cases has varied from time to time according to the number of cases that have come before the court, according to the frequency of changes in the membership of the court, according to whether a new member has been appointed directly from the bar or from the circuit bench or from some other office or from abroad, or for any other reason had not. for some time previously been in practice to any great extent or at all, etc. The circumstances were such that prior to 1868 there could have been but few, if any, such cases. One of these cases, that reported in 16 Haw. 66, was a previous stage of the case now before the court, in which the same justice now in question was held disqualified for the same reason that is now urged. He had argued before this court a motion for a rehearing in the case. After his appointment to the bench a circuit judge sat in his place on a second motion for a rehearing. The case was then before the court on exceptions. The same case is now here on error, and many of the same questions are raised, although they may be disposed of on the ground that they were decided on the exceptions. It does not appear whether prior to the enactment in 1892 of the section which as subsequently amended is now R. L., Sec. 1634 above referred to, the judges declined to sit in the exercise of their discretion as a matter of propriety or because they were regarded as disqualified, although the mere repeated entries that they did not sit for that reason was regarded as sufficient for establishing the law in the Florida and New Hampshire cases above referred to. Prior to the enactment of that statute the court was *410expressly authorized to decide according to reason or to adopt the principles of the common law or of the civil law, when founded in justice and not contrary to Hawaiian law or usage. See note to R. L., Sec. 1. Hnder the civil law, having been of counsel was a disqualification. This was one of the classes of cases in which the court might naturally have declined to follow the common law. But, whatever may have heen the view taken before the enactment of that statute, there can he no doubt that since its enactment the reason for not sitting has been that the • judges were regarded as disqualified. These cases, decided since the enactment of that statute, constitute the great majority and cover all or nearly all reported after the close of the eighth volume of the reports. In some instances the judge himself has mentioned that he had been of counsel and -the attorneys have at once conceded that that was a disqualification. In other cases the objection has been raised by counsel, and in all or nearly all cases the question has been merely whether the judge had in fact been of counsel in the particular case, and upon the establishment of that fact it has been taken for granted by court and counsel that he was disqualified. In only two cases, namely, in Love v. Love, above referred to, and the present case, have counsel taken the position that the judge was not disqualified, and in these cases that position was taken for special reasons or under special circumstances and upon the suggestion from the court that that was the only way, if there was any way, in which a certain desired object could be attained. The case of Love v. Love 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. The court in that case confined its decision to the facts of the case and expressly declined to express an opinion upon a case, like the present, in which the judge had taken an active part as counsel. Since the enactment of the statute which allows substitute judges only in cases of disqualification or absence of regular judges, it has frequently been mentioned by the court, sometimes in response to an expression of consent by counsel to a judge sitting who had been of counsel, that it was not a matter of discretion with the judge but that *411if he was disqualified he should not sit, and if he was not disqualified he should sit, and that if he was disqualified it was at least questionable whether the disqualification could be waived by counsel. It has been remarked also from time to time that the statute permitted a substitute only in a ease of disqualification or absence and not in case a judge who was present and not disqualified should decline to sit. In practically all the cases reported in the ninth and subsequent volumes of the ■ reports it is distinctly stated that the judge did not sit because he was “disqualified” and not merely that he did not sit or declined to sit, and a substitute was requested in writing to sit in his place under the statute on the ground that he was “disqualified” because he had been of counsel, it being recognized that no substitute could be called in unless the judge was disqualified or absent. Thus not only has there been the practice but there have been repeated adjudications. The practice alone might be sufficient. The repeated adjudications would certainly seem to be sufficient even if made inadvertently. But, as matter of fact, they were made advertently. The fact that no contest was made except upon the question whether the judge had in fact been of counsel in the particular case or not, does not alter the situation. ' The fact of acquiescence with Knowledge on the part of bench and bar shows a general recognition of that as the law. As stated in the Florida case, the law “here is as fully settled by years of unvarying recognition and enforce-' rnent as any other principle of law.” If this does not establish the law here, in the absence of a statutory or constitutional provision to the contrary, it is difficult to see how a rule of law can be established by practice or precedent except by judicial decision in so many words after a contest on the particular point. To hold that the law has not thus become established here would be practically to elevate the common law of England to the position of constitutional or statutory potency in this Territory.
Thus it seems clear that unless there is some constitutional or statutory provision to the contrary it is established by precedent and usage in Hawaii that having been of counsel is a disqualification. The only statutory or constitutional provision *412relied on to, the contrary is Section 84 of the Organic Act, which reads as follows:
“That no person shall sit as 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 issue of which the said judge or juror may have, either' directly or through such relative, any pecuniary interest. No judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment.”
If this establishes the law to the contrary, it is only on the principle of expressio wiius est exelusio cilterius. I appreciate the force of this argument. And yet this maxim, as often stated, is merely an aid to construction and is not of universal application and should be applied with great caution. The argument at best is one of mere inference and the inference is not a necessary one. No doubt under this maxim the first sentence of the section quoted is exclusive as to the matters, namely relationship and interest, to which it relates. For instance, under it, relationship beyond the third degree would not disqualify. But it does not follow that it is exclusive as to other matters. Its enactment may be fully accounted for on other grounds tiran that it was intended to be exclusive. It was fully justified in order to fix the degree of relationship and make it apply to relationship by affinity as well as consanguinity. Likewise the second sentence is doubtless exclusive as to the matters to which it relates, and especially as those matters would not be disqualifications in the absence of any such provision. It is easy to see that if the second sentence stood alone, as it does in some state and federal statutes (see Spreckels v. De Bolt, 16 Haw. 416), it could not be regarded as excluding other disqualifications; it would be absurd to, say that it would permit a judge to sit in a ease in which he was an interested party. It could also hardly be seriously contended that either portion of this section would permit by implication one to act as both judge and counsel in a case at the same time, especially in view of R. L., Secs. 1619, 1620. See McGregor v. Crane, 98 Mass. 530, and the New Hampshire case above cited. In the Florida case the court held that a provision corresponding to the first part of this section *413was not exclusive, saying, “We do not understand, nor is there any sanction for the opinion, that the act * * declaring interest and consanguinity or affinity to be grounds of disqiialification, and prescribing the practice in such cases, to be an exclusion of any of the other established grounds of disqualification.”
The Texas, Missouri and California cases cited contra in .the opinion of Mr. Justice Hartwell do not seem to be in pomt. The Texas case held merely that a provision' against sitting in a case in which the judge had been of counsel would permit him to sit when he had been of counsel in a different though similar case, very much as our provision against a judge sitting when related to a party in the third degree would, permit him to sit when related beyond that degree. In the Missouri case the question was not involved, and there was an express provision making it a disqualification to have been of counsel. The California' cases, not to mention distinguishing features of the individual cases, were decided under a code which was supposed to cover the entire law.
Both sentences of this section of the Organic Act have, with some modifications, been part of the constitutional law of Hawaii for more than fifty-three years, the first sentence having been article 11 of the constitution of 1852, article 10 of the constitutions of 1864 and 1881 and article 89 of the constitution of 1S94, as well as a part of section 820 of the civil code if 1859; the second sentence having heen article 92 of the constitution of 1852, article 12 of the constitutions of 1864 and 1881 and article 88 of the constitution of 1894 as well as a part of section 820 of the civil code of 1859. 'Both parts, like many other sections of the Organic Act, were copied in that act from the constitution of 1894. Perhaps the rule should be followed that when one state borrows a 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 itself 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 judi*414■ciary has been continued in force by the Organic Act see 5 Ops. Att’y. Gen’l. 539; Schooner Robert Lewers v. Kekauoha, 114 Fed. 849; Carter v. Gear, 197 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 in the past as exclusive. The question whether it was exclusive has often been suggested by the court, but except in Love v. Love and the present case counsel have not seen fit 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 exclusive in 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 sentiment elsewhere, as shown by constitutional 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, a 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. It has not happened, so far as I know, during the fifty-nine years covered by •our reports. If it should happen occasionally, that would be incomparably better than the alternative that members of the court should sit in all cases in which they have been of counsel —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.