Ka Leo o ka Lahui, Volume II, Number 156, 24 Malaki 1891 — Hilo Sugar Co. vs. Mioshi. [ARTICLE]

Hilo Sugar Co. vs. Mioshi.

Disseni ing opinion of Dolv, J. It is xuy ouinion that the coiitract m this cise is not enforceablo, for the reason that it is not a contract between the partiefe. It is, in bnef. a contract between the Hawaiian Governn»ent and the defendant, in whieh the latter agrees to labor for such master or masters as the Hawaiian (Vovernment may select, although this purpose is skillfully veilcd in language that dwells t<omewhat upon the guarantee of the Hawaiian (ioyerniijent to furnish the defendant with employment. The contract binds hi'm to accept t?uch employment. the Hawaiian (ioverument may a«>ign him to, in other words, to «'K-eepl such inaster as the Hawaiian (iovcrninent mny select for him. and if he objects t» abide by the declsion of the Board of Imiiaieration, a Bur«au of the Hawaiian Government. Qn the back of the contract is endf>rped an agreement between the Board of liiimigration and the Hilo Sugar Co., dated over two weeks jifter the original contract, by whieh ihe defeiidant is handed over to the Ililo Sugar Co., and tbey stipulate to carry out the covenants made bv 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 was not a party to this agreement assigning him to the Hilo Sugar Co. Bo 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 eome into their hands. without having opportunity to choose his employers, by a proce;«s suspiciously fcimilar to that by whieh a Honolulu 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 invo!untary servitude or semi-sla-verv. whieh 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 & Co. vs. Kanahele, [4 Haw, 14] is, I admit distinctly opposed to the above view, but I believe that decision to be wholly erroneous. That however, was not as evident a case against personal libert-y as the one before the Court, as the plaintiffs were the original contractors and having sold their plantation they brought the suit to eonpel their laborer lo work on the plantatio® they had Bold, he having agreed to work for their assigns in case of sale. But in the case before the Cwurt there is no privity whatever between the parties; the plaintiffs are purchasers of defendant's eontract at cost from the Hawi iian <iovernment; this, I think, is the clear eemmon sense view of the transaction in spite of the strenuows avoidance of any appearanee of such a meaning in the language of the instrument. It Bometimes happens that in the final gettlement of a legal question, the best law is found in a dissenting opinion. That is, I think the eaee in Nott & Co:, vs. Kanahele, and I desire to briefly from the dissenting opinion

in that case of Mr. Justice Judd.! l vThe words of sectron 14171 (Civil Code) above qupted, 4 'any person * * * mav bind hiin self to serve another,' nieans that he may bind himself toserve an undividual who • is ascertainedi and known to the laborer at the | time of making his contract, or| who could be ascertained by the! laborer ifhe made inquiry. This section does not authorize a man to make a contract to serve oue who is wholly unascertained, or who is ascertained independently of the servant's will. The policy of our institut ions and laws forbid. the making of such contracts." [o. 17j. '• Thore is no enactment of the legislature that will eompel a maii, to Work for another @r his assigns•" Lp. 18]. "If a man could be passed from one to atiother, like a chattel by an a ssign ment of hi s contract, it reduees lnm at onee to the condition of a chattcl and this is a form ofinvoh:nt:iry servitude, whieh though for a liniited perio(l, is rK'verthek\ss, repugnant to the policy of our-insti-ty.tif>ns and forbidden by article 11 of the constitution" ••If a contract, that is, an agreement bv whieh one person binds himself to serye another, is in its nature unassignable the law wiil not allow the laborer to make a eontract whieh is in its terms assignable. He canpot make an engageoient whieh is illegal and inconsistent with the liberty whieh every man has of chocsing his' own employer. lie may not barter away his freedom in advance." It would not be easy to inprove ow the wording of these citations, in stating the prevailing legal sentiment of the civilized world on this question. This position is supported by the Waihee plantation vs. Kalapu, (3 Haw. 700); Drier vs. Kua (4 Haw. 584) and m Re Gip Ah Chan, Haw 25]. In Drier vs* Kuaa tlie Cour say: We cannot direct the defendants to labor on this p!antation for he [Drier]has no intrest in it; there is no privity of contract bet\veen these laborers and the ownerscf the Koloa Sugar Company, and therefore the defendants cannot be eompelled to work on this plantation." The case Cxtpr* Ali Chan was tried at Chambers before MrJustice Hartwell in 1870 and his decisien contains the following language: "I do not regard that a contract is enforceable under this penal statute and within its meaning unless it is in writing designating theparties either by name or in such a manner that they ean be ascertained preciseJv at the dateofthe %>ntract. \lt is unnecessary to commerit on the wisdom of a statuto restricting the enforcement by penal eervitude of contracts for labor to those inade in writing with ariother or with a firm or on consideratk)ns whieh might arise on a law whieh al)owed tbe penal inforcement of contracts between pai ties not named or asoertained at the date of the contr«icts" The liberty of choosing one's own employer, is undoubtedly within the unalienablerights guarantefd to 44 ali men" by article first c»f the Constitution. How then ean one alienate or d:spose of such liberty ? A contract waving this right is inconsistent with this great provision of the Constitutioa, and theref»re iilegal and void. . This

is what the contract before us distinctly does. I am nlso of the opinion that the instrument requires to be stamped I This requirinent is clearly set forth | in the statutes and no exception is i made. Chapter 55 of tl\e Laws of 1876 requires this and pr©vides that, <c no instrpment required stamped shall * * * beofany validity in any court of this Kingdom unless the snme shall be properly stamped." And Chapter 30 of the Laws of 1886 provides that any agerit to take acknowledgements of contracts "who shall certify to the acknow]edgement of anv contract not fully stamped shall be liahle to a fine of fifty do!lars." The argum4ht of plaintilf's eounsel that the Government being the emnloyer woulfl have to pay for the stamps, does not apply to this contract is not convincing to my mind, In fact the Governnientiis not thfvemnioy-er, and thc contract doe? not pretend that such is tiie case. The Government has no work for t}u'se men, no ]>lant:itions upon whieh' to em])loy them, it is niereby the ehannei through whieh the l£.borer reaches the eaaplover. The contract is inchoate in it-s terms until it has been supplementcd by the endorsM\ent whieh provides an envp]oyer, and he then is liable to stampduty. (Signed) Saxfohd H. 1)ole.