DISSENTING OPINION OP
PERRY, J.I respectfully dissent.
Passing for the moment other elements of the charge which will be later referred to, the mere fact that the respondent while district magistrate accepted employment as attorney for the libellant in a divorce case and *526performed to the end the duties of that employment does not justify his removal from office and was not in anywise illegal. Our statutes do not prohibit a magistrate from accepting such employment or from acting in the capacity of attorney. The state of the statutes, on the contrary, is such that they may properly be said to permit and invite the acceptance of such employment. In the case of judges of the supreme and the circuit courts it is expressly provided (R. L. 1915, Sec. 2243) that they shall not “exercise the profession or employment of counsel or attorney-at-law or be engaged in the practice of law.” There is no similar provision with reference to magistrates. In the case of the attorney-general and all of his deputies, it is expressly provided (R. L. 1915, Sec. 1431) that they shall not “be concerned as counsel or attorney for either party in any civil action depending upon the same state of facts.” There is no similar provision with reference to district magistrates. The only inference deducible from these express provisions and from the silence of the statutes on the same subjects with reference to magistrates is that it was the intention of the legislature to leave magistrates at liberty to accept employment as attorneys at law. More than that, a bill was presented to the legislature at its session of 1923 (if my memory serves me well, similar bills have been presented at earlier sessions of the legislature) prohibiting magistrates from engaging in the practice of the law and requiring them, in other words, to devote the whole of their energies, their time and their attention to the performance of their judicial duties. But the legislature in its wisdom refused to pass this bill. It thereby affirmed that the inference deducible from its silence in the past was correct, namely, that it wished the men who were magistrates to be at liberty to supplement their official salaries by employment and compensation for their *527services as attorneys at law. I am not defending that state of the law. I think it is a pernicious one, necessarily resulting at times in difficulties and incompatible with the highest independence and efficiency of magistrates; but that is the law, laid down by that branch of our government upon which alone rests the responsibility of determining what the law shall be. No blame, therefore, attaches to the respondent for accepting employment in a divorce suit or for performing to the end all of the duties of that employment to the best of his ability.
The case of In re Bevins, 26 Haw. 570, has no resemblance to that at bar. In that case the respondent was a county attorney and charged expressly by law with the duty of prosecuting persons charged with the commission of criminal offenses; and he was under the express inhibition already quoted against being “concerned as counsel or attorney for either party in any civil action depending upon-the same state of facts.” He was found guilty and suspended simply because he violated the express terms of the provision last quoted. While county attorney and while under the obligation to prosecute for the commission of crimes, he accepted from the complainants employment as their attorney to conduct civil proceedings in mat-térs depending upon the same state of facts upon which criminal prosecutions could and should have been based. No parallel exists between those facts and the facts now immediately under consideration; nor is there any similarity in the state of the law or in the principles involved.
It is contended, however, in effect, that the respondent participated in and conducted a conspiracy to procure for his client, Mrs. Freitas, a divorce upon trumped-up and non-existing grounds. The grounds charged in the libel were, in substance, extreme cruelty, consisting of physical violence and false accusations against the chas*528tity of the libellant. The difficulty with this specification against the respondent is that it is not supported by any evidence in the case and that its truth is expressly negatived by the evidence of the wife and of her daughter. Mrs. Freitas not only testified that it was her wish, formed before* ever consulting the respondent, that the divorce should be procured upon the ground of cruelty and not upon the ground of adultery but also testified expressly and most clearly that all of the allegations of the libel concerning cruelty were true, that on one occasion her husband had struck her a blow, that on many occasions she had suffered at his hands a course of conduct which she termed “impertinences” (as translated by the interpreter) and that the husband had on several occasions by the use of physical force put her out of the house, “thrown her out of the house,” “pushed her out of the house.” Such conduct as this clearly constitutes extreme cruelty. Mary Freitas, daughter of Mrs. Freitas, stepdaughter of John Freitas and his accuser in the matter of the adultery, testified expressly that all that her mother told the respondent on the subject of extreme cruelty was true and that she herself had seen her stepfather strike her mother and with force put her out of the house and throw her down the stairs. These two are the only witnesses who have testified on the subject of extreme cruelty,- — except Freitas, who denied in this court all acts of violence and whose lack of credibility is dealt with below. My only finding on this subject can be and is that there was no false charge of extreme cruelty and that there was no conspiracy to falsely charge such cruelty. After a trial directly on the point the judge of the court of domestic relations found that there had been no collusion between Mrs. Freitas and her husband looking towards the securing of a divorce by Mrs. Freitas.
*529It may be added at this point that in divorce cases tbe reliance by a libellant, man or woman, and counsel upon the lesser of two or more truthful charges against the libellee is not a novel thing. It frequently happens that, along with a possible charge of improper sexual relations, the facts justify a charge of desertion or cruelty or failure to provide and it often happens in such cases that the libellant and her attorney prefer not to mention the graver misconduct but to seek the divorce purely by reason of the commission of the lesser offense. Men of the highest standing at the bar have so chosen in the past and their choice as well as that of their clients is commendable. Whenever the lesser reason of the two suffices and requires a dissolution of the marriage tie according to the laws of the land, why should the graver charge be published broadcast and contested in public? What public or private good would be attained thereby? None whatever.
Again it is contended as a serious element of wrongdoing on the part of respondent, that in addition to conspiring to present a false libel to the court he undertook and conspired to perform a marriage ceremony which would make Freitas and his stepdaughter man and wife before the girl should attain the age of fifteen.. The evidence of the respondent on the one hand and of the prosecution on the other hand is in direct conflict upon this point, the respondent denying that he ever entered into any such undertaking. Weighing the evidence of the witnesses, I believe the testimony of the respondent on this subject. He knew what the limits of age were which were prescribed by law in cases of marriage. I cannot believe that a man of his intelligence and ability and experience (he had served as agent to grant marriage licenses at one time in the past) could deliberately conspire to violate such a law as this, — and in a matter, too, of no materiality to him other than the recovery of a fee of $75.00 from a client *530of doubtful ability to pay and wbo bad paid only $6.00 on account. But beyond that, tbe witnesses for tbe prosecution in point of credibility bave not impressed me favorably. Tbe attitude and manner of Freitas on tbe stand were sucb as to indicate to me clearly that no reliance could be placed upon bis testimony. He trembled most noticeably throughout tbe giving of all bis testimony. A man of his age taking tbe stand with tbe sole purpose of telling tbe truth would bave no cause for trembling. He is a man of mature age. Mr. Joseph Dias, interpreter in tbe courts for many years past, testified that at tbe rehearing of tbe divorce case before Judge Desha, Freitas, wbo was seated in tbe court room next to tbe witness, said, “You son of a b-I’ll get you yet,” meaning tbe respondent wbo was then on tbe witness-stand. This Freitas denied while testifying before us. I believe tbe evidence of Mr. Dias. Freitas’ manner on tbe witness-stand indicated to my mind a spirit of hatred and vindictiveness and a willingness to testify falsely and I believe that in many of bis answers on material matters be perjured himself. I place no reliance upon bis testimony. So also tbe attitude and manner of Mrs. Freitas on tbe stand did not impress me favorably. She is clearly of a very nervous, excitable temperament. Her story, as well as that of tbe girl, has evidently been told many times before officers of tbe government, before tbe attorney-general or bis deputy, before Judge Desha, before inferior officers of tbe court of domestic relations, as well as finally before this court. Tbe judge of tbe court of domestic relations, after a rehearing, judicially found that “tbe evidence given by tbe libellant in tbe original trial was at variance with that given by her at tbe rehearing” and that tbe evidence given by her at tbe rehearing “refuted tbe evidence she gave” at tbe first trial “relative to tbe ground of extreme cruelty.” In other *531words, the circuit judge found that she committed perjury in one of those proceedings. I cannot feel assured that she is not committing perjury now.
It was Mrs. Freitas’ strong desire from the very beginning, formed by herself before she ever consulted the respondent, to secure a divorce and to have her husband marry his stepdaughter because, as she put it, the girl and the man seemed to care greatly for each other and because she did not want the girl disgraced. After Mrs. Freitas left her husband and refused to take her daughter with her, the daughter remained living in the same house with the stepfather in Avhich all three had been living. The arrest of the girl, some time after the employment of the respondent as attorney, on the ground that she was living alone in the same house with her stepfather and probably in adultery with him, might have caused fear on the part of Mrs. Freitas that her program of a marriage of the daughter with the stepfather would be interfered Avith. There were consultations between her and her husband on the subject. She may have become suspicious that the respondent had caused the arrest of the girl or given information which led to her arrest. My own experience as a practicing attorney has taught me most emphatically that clients of the type of Freitas and his wife are often unduly suspicious of their attorneys and often misunderstand and misinterpret what their attorneys have said and make against them Avholly unfounded accusations. Whatever her motives and however they arose, I cannot place any reliance upon her testimony to the effect that the respondent promised to perform the marriage ceremony on July 10, 1923, at 4 o’clock P. M. The respondent says that the little piece of paper which he handed to Freitas containing the words and figures “July 10, 1923, 4 o’clock P. M.” was intended by him to be a memorandum of the time when Freitas could obtain from *532Mm a certified copy of the decree of divorce and that it was given in answer to the request of Freitas for the “divorce papers.” Upon tMs point the testimony of Freitas is that the respondent had toM him that he, Freitas, wouM he married on July 10 and that he, Freitas, was afraid he might not he able to remember the date of his own marriage and that therefore he had asked for a memorandum of it in writing. When I am asked to base a most serious judgment against this respondent upon testimony of this nature J can only say that I cannot do so.
I bear in mind that all the time there must be hanging over the girl the thought that she is under the serious charge of having committed adultery with her stepfather. I bear in mind her natural desire to overcome that charge in the easiest way possible. It would not require a very great degree of imagination on her part to believe that if she tells a strong story against this respondent she may be more leniently dealt with by the authorities. Continued repetitions by her of this story and continued hearings by her of repetitions of the mother’s narratives and of the stepfather’s narratives on the same subject for months past may easily have created in her mind confusion as to the times when, the places where and the persons to whom this, that or the other statement of hers or of her mother’s was made.
As opposed to the testimony of those three witnesses, susceptible of these and perhaps other weaknesses, is the testimony of the respondent. Thirteen members of the bar of this court, all men of high standing in this community and who cannot be deemed capable of any misstatements or exaggerations for the purpose of freeing the respondent, have testified unequivocally and with unanimity that the reputation of the respondent as a judge, as an attorney, and as a citizen is “of the very best,” “excellent” and “above reproachthat none of these have ever heard *533any accusations or imputations against him in any capacity; that they have dealt with him as attorney in cases in Avhich they were associated with him and in cases in AArhich they Avere on opposite sides and that his dealings and conduct as an attorney were always exemplary. They have testified to practicing before him as magistrate, some in a few cases only, others Avith very great frequency, and all, whether they won or they lost, declared that his rulings and conduct have been characterized by fairness and legal ability. Evidence of this sort is admissible because it may properly influence the court trying the respondent in its determination of the credibility to be attached to his testimony upon the main issues. It influences me. I place reliance upon the testimony of the respondent. I do not believe that he ever promised or conspired to marry Freitas and his stepdaughter before she became of the age of fifteen, which is the minimum age permitted by law for a Avoman to marry, or that he knew prior to June 15 when the girl was arrested and placed in the detention home that she was less than fifteen years of age or that he conspired or intended to defeat the law relating to punishment of Freitas for the alleged adultery.
It is not shoAvn by proof or contended that the respondent has habitually accepted employment in cases in other courts that would legally disqualify him from sitting, or render it advisable that he should not sit, on criminal cases arising out of the same or connected transactions. In the one transaction in question, whether he was disqualified or not, he has testified, and I believe him, that ■ if a criminal prosecution had arisen in his court he would have asked the second magistrate to sit in his place. If the magistrate had, after serving as counsel in the way that he did, proceeded to sit as magistrate in a criminal cause in which Freitas — or perhaps the girl —was accused of crime, the accusation against the re*534spondent would be of a more serious nature; but tbis did not occur. Tbe law provides for tbe appointment of two magistrates. Judging from the per diem pay provided for tbe second magistrate, bis sittings were, it is true, intended by tbe law-makers to be occasional and temporary only and were not intended to permit tbe first magistrate to so indulge in practice as to require tbe government to pay per diems to tbe second magistrate wbicb would not otherwise be required. But tbe wrong involved in tbe respondent’s having tbis once caused tbis additional outlay to tbe government for tbe bearing, by tbe second magistrate instead of the first, of criminal proceedings against Freitas or tbe girl would not be a matter of any such degree of seriousness as to require or justify bis removal from office. A simple caution or expression of disapproval, I am confident, would prevent a-repetition of any such unnecessary outlay of money.
.Much was said during tbe trial to tbe effect that tbe information gained by tbe respondent on June 15 (tbe day on wbicb tbe girl was taken to tbe detention borne) that tbe girl for two weeks bad been living in tbe same bouse with Freitas and that, therefore, it was altogether likely that tbe suspicions of Mrs. Freitas communicated to tbe respondent on June 4 that there bad been improper relations between Freitas and tbe girl were well founded, was sufficient to imperatively require tbe respondent to then withdraw as counsel in tbe divorce case. I am entirely satisfied with tbe respondent’s answer to tbe question of one of tbe justices upon tbis point, to wit, that .as to any criminal prosecution wbicb might be instituted after June 15 tbe respondent was no more disqualified after that date than be was before that date. I say tbis in view of my finding that there was no conspiracy to obtain a divorce upon false grounds and no undertaking by tbe respondent to perform tbe marriage ceremony *535before tbe girl should become of legal age for the purpose or to thwart the criminal laws.
The finding that on June á the respondent knew that there had been illicit intercourse between Freitas and the girl rests upon the testimony of Mrs. Freitas and that of the girl. Freitas, it is clear, gave no testimony on which that finding could be based. The wife herself testified repeatedly in different forms in this court that what she said to the respondent was that she merely suspected the existence of these relations and that she had no proof of it, — adding that the respondent could ask the girl questions on the subject. I regard the woman’s evidence as entirely corroborating that of the respondent on this point, to wit, that all he learned from her was that she suspected but did not know of these relations. Mrs. Freitas herself testified before us that she told the respondent that the girl had once refused to accompany the witness to the bank and had staid at home. She also testified in answer to questions by me that in her first consultation with the respondent she wanted to give way to the girl because the girl seemed to want Freitas and not because the witness believed improper relations had occurred. The girl’s evidence was to the effect that she informed the respondent not only that Dr. Gaspar had said that _ she was no longer a virgin but that it was true that improper relations had existed. But as I have already stated, I cannot place reliance upon the evidence of this girl or base upon her evidence alone the finding that it was Freitas who caused the loss of virginity or that she told this to the respondent. It is easily possible for this girl, after the variety of examinations which she has undergone, after the many statements that she has made to different persons including her mother and, doubtless, Freitas, with knowledge of the charge that hangs over her own head, and with the human instinct to shield her*536self as far as possible, to have either become confused as to the person to whom she made this, that or the other statement, or even to have deliberately misstated the facts. If the claims of the prosecution as to her actual relations with her stepfather are true, she cannot be regarded as a wholly innocent child, unversed in the ways of wickedness and crime. If those accusations are true, she was quite willing to deceive her own mother on the subject. She appears to be a bright, intelligent girl. It cannot be said that she followed her illicit course with Freitas without a realization of the grave wrong she was doing her own mother in supplanting her in the way that she did,— if she did do so.
If reliance upon the evidence of Freitas is well founded, then the finding must be that there never has been any illicit intercourse between the girl and Freitas and the whole foundation of this case falls to the ground, for Freitas testified in the most positive terms, not in one “Yes” or one.“No” but in repeated and elaborate statements, that he never had intercourse with the girl, that he tried to get rid of her when the mother left the home, and that he allowed the girl to remain only because the mother slapped her three times in the face and refused to let the girl go with her. If this evidence is true, there is absolutely no case against the respondent. If it is not true, Freitas deliberately perjured himself on the subject; and if he did, how can I place any reliance upon any of his other material evidence? I cannot do so. He likewise deliberately committed perjury when he said that he had never struck his wife or thrown her down the stairs. His attitude and manner at the time of so testifying, as well as other circumstances, indicate this to my mind.
I find no cause for the removal of the respondent. The public good does not require it. On the contrary, I feel confident that the public good will continue to be well *537served in the future as it has been in the past by his continuance in office. That it has been so served in the past, the eloquent words of the many attorneys who testified amply show.