The Hawaiian gazette., 1871-05-03
Supreme Court of the Hawaiian
Islands.
IN BANco-AIRIL TERN, A. D. 1871.
John Norton IS. Paahnnn.

Jusuces ol TINS Court at chambers. refusing to
grant libel for dSorce. The libel was filed
July 6, 1870 alleging adultery of the wife. I'm
der the law in force at the date of filing the libel
and return of service the Justices of this Court
had jurisdiction at Chambers to grant divorces.
July is, 1870, an Act was approved by the
King, which by its terms took effect from publi-
cation, repeating al Acts aud parts of Acts
authorizing divorce calses to be heard at Cham
bers, and all Acts and parts of Acts inconsistent
Herewith. Section l of this Act declares that
Divorces from the bond Of matrimouy call be
granted for the causes hereinafter set forth, and
for no other;" Section 2, that if the parties
"shall have lived together as husband and wife
in Oahu, the Supreme Court shall exercise iuris-
dcton. But all such cases shall be regularly
entered on the Calendar like other civil actions.
No such case shall be heard at Chambers. and
no consent of parties shall warrant the Courts in
hearing divorce causes or any matter connected
Herewith, except during regular sessions in the
public Court rooms. In all proceedings
before the Supreme Court connected with divorce
causes the presence of at least two of the Justices
shall be required" Section provides that all
proceedings for divorce snail be commenced by
libel; !" that process shall be made returnabe at
the term "next after the expiration of forty
days from the filing of the same" and that the
Court shall not entertain jurisdiction of such
Ebel'' unless personal service shall have been
made more than thirty days before the first day
of the term to which the same shall be returna-
bic, except as is provided in the following Sec
ton" BY Section 4. if personal service can not
be made and the respondent can not be found, the
case shall be continued until the next term. and
an attested copy of the Summons meanwhile
shall be printed in the Government GAZETTE and
AU 0KoA. BY Section 6, no divorce for adultery
shall be granted where the libei was not filed
within one year after the discovery by the libel
liant of the offence charged" There are nu-
merous other provisions, but these contain all
that affect the question of jurisdiction. Under
the new Act, the Attorney General is entitled to
be heard to establish the fact of cOlusiOn, or
the existence of testimony not produced" He
was heard, in opposition to the authority of the
Court at Chambers to gvan: the prayer OF the
libel.
The following are the euactments bearing on
the case " No law shall lave any retrospective
operation" Sect 5, Civil Code The repeal
Of any law shall in no case affect any act done
or right accruing accrued, acquired established,
or any proceeding had or commenced in any civil
case before the time when the said repeal shall
take effect" H., Sect %. No suit or prose-
cution pending at the time of the repeal of any
law, for any offence committed or forfeiture in
Cured under the law so repealed shall in any case
be affected by such repeal" H., Sect. %. All
questions of law arising in any civil cause shall
be decided by the Court or Judge before whom
the matter is pending" h., Sect S22. 1.-The
several Courts in their decisions shall have due
regard to vested rights" I5., Sect. 825. No
retrospective laws shall ever be enacted" Art.
16, Const The Supreme Power of the King
dom, in its exercise, is divided into the Execu-
tive. Legislative and Judicial; these shall always
be preserved distinct" Art. 90 Const.
HARrwELI, j..
The Act of 1870 has no express clause in favor
of pending cases at Chambers, and the first point
for consideration is whether it was the intention
of the Legislature that such cases should be
decided under the old law according to the rules
of procedure, and on the grounds of divorce
which were in force when they were begun, or
that all jurisdiction over those cases at Chambers
is taken away. requiring them to be dismissed
and brought under the new Act. If the latter
view be correct, then it is to be considered
whether the Act is to that extent uncOnsttu-
tional and void.
The hardship of legislatiug parties out of
Court and requiring them to commence their
suits anew IN another tribunal, and by rules of
procedure not existing when they brought their
actions, is evident. They lose in time and ex-
pense incurred on the strength of their reliance
upon the laws 1t is claimed that no person has
a right to expect the tribunals or rules of pro-
cedure which exist at the time when he brings |
an action to continue until his cases are decided
This may be admitted as sound doctrine, provided
a competent tribunal be furnished to decide the |
actions brought before the change in the law
anu tuab tuC CuAuEC III ehe ptOSSuuAe W uoG /
destroy or materially affect the right of action or
ground Of defence in actions previously COM
menced. There are many decisions of great |
interest in the United States concerning laws
which impair the obligation of previous contracts,
or affect the decision Of pending cases. Statutes
of limitation, Bankruptcy Acts, laws making
parties witnesses in their own cases, abolishiDg
old and creating new tribunals, or requiring ac-
tions to be brought in different form, have given
rise to numerous suits in which arguments Of
eminent counsel and opinions of Courts of dis
ability, have illustrated questions like
that now before Us. The cases on some points
thus presented appear to be irreccncilable with
each other, but have failed to find any decision
that clear statute remedy can be taken from
any party iu pending case without some pre-
tence Of an equivalent, and that right Of action
in such case can be directly destroyed. such,
however, is the result of the construction urged
by the learned counsel. The libelant alleges
that the adultery was. first known to him about
Dec. 2s 1869. The Act of 1870, by its express
terms. makes it impossible for the divorce to be
granted, inasmuch as the limitation of one year
/