The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-05-27
ELISHA II. ALLEN,
CHAs. c. HARRIS,
\. FRANCIS JUDD.
Supreme COurt--In BancO.
April Term. a. ID. 1874.
Honolulu, April 90, 1874.
~ Kinq 8. IoIn Asequt. e AZ

Chief Justice Allen delivered the opin-
ion of the Court as follows:
This is an indictment against the de-
PENDANT, under the Statute for obstructing
and perverting Justice.
The charge was that the defendant had
illegally rescued cattle from government
pound with intent to defeat seizure. \
trial by jury was had at the Circuit Court
of the Third Judicial Circuit, and YER
dict of guilty was rendered. 1t appeared
by the evidence of Mr. Frank Spencer,
that the old pound was at Puuloa, and
that he had put the pound, where it now
/ Is, on his own responsibility.
He further testified, that he had leased
the pound to Ulii, the pound-keeper for
one year. He says further, " don't think
the governor knew about the removal OF
/ the pound. 1t was done on my authority.
l do not know that the governor ever pub
lished the place as the pound, but he re-
cognized it as such, and arranged for re-
pairing the wall"
After the evidence was closed, the
counsel for the defendant requested the
Court to charge the jury that there was
no evidence that the pound had been es-
tablished according TO the provisions of
Section 23l of the Civil Code, which are
in these words.
at shall be the duty of the Minister of
the Interior through the several governors,
to construct and set apart a suitable en-
closure, or enclosures, in each district of
their respective Islands for the impound-
ing of estrays, and he shall give notice of
their location and extent in some public
newspaper"
The Court refused the instruction as re-
quested, but did instruct the jury to re-
gard the pound in question as a govern
ment pound, to which ruling the counsel
excepted.
The minister acts through the COVER
nors in establishing pounds, and in this
instance the governor recognized the en-
closure in question as the pound, and COM
piled with the code to this extent, for it is
of no consequence whether he constructs
and sets apart a suitable enclosure in the
first instance, or recognizes and adopts
one already made. 1t is contended further
that notice should be given Of the location
and extent in some public newspaper, as
required by the Statute, and that this pro
vision is mandatory aud not directory, as
maintained by the Attorney General.
Lord Mansfield said that whether the
Statute was mandatory or not depended
upon whether the thing directed to be
done was the essence of the thing re
CURED"
In the case of People vs. Schermuhoin,
l9 Barb, the Court say, " that when pow
er to affect property is conferred by Stat
ute upon those who have no personal in
terest in it, such power can be exercised
only in the manner and under the circum-
stances specified, the power must be strict
ly pursued"
Chief Justice Shaw, in a case involving
the legality Of a tax under the provisions
of a statute said, "One rule is very plain
and well settled, that all measures which
are intended for the security of the citi-
zen; for securing an equality Of taxation,
and to enable any one TO know with rea-
sonable certainty, for what real and per
sonal estate he is taxed, are conditions
precedent, and if they are not observed,
he is not legally taxed, and he may resist
it in any of the modes authorized by law
for contesting the validity of the tax"
When the rights of party are affected
by proceeding under statute authority,
the mode of proceeding directed is man
datory, and must be strictly complied
with, or the proceeding will be utterly
void
BY the Penal Code, heavy penalty is
imposed on person who rescues n thing
that is under legal seizure with intent to
defeat such seizure. In this case the re-
spondent is liable to the penalty, if the
cattle were impounded in an enclosure,
set apart for that purpose, of which due
notice was given in public newspaper.
The Statute requires that notice shall be
given to the public, but in this case, no
evidence was introduced that it was so
given. The responsibility of rescuing
cattle from government pound, of which |
legal notice has been given, or from the |
enclosure or fields OF individuals, is very
different. The one Is punished by severe
penalty, and in the other case the party /
is mulcted in damages as a trespasser. |
Hence the public have a right TO be in I
formed, in the mode prescribed by law, of /
the establishment of government pounds. /
\ person might take the responsibility in T.
the one case, and decline to take il in the \
other
1t is a penal law in its consequences,
and should be construed strictly.
This notice is intended for the security 4
Of the subject, both for his liberty and /
his property, and while all the authorities
sustain the doctrine, that where one may
be Invested of his estate by proceeding
under statute authority, the mode of pro-
,eeding is mandatory, and must be strict
" complied with; 1t is more incumbent
On the Court to enforce the rule when the
liberty of the subject is involved.
Long user might be taken as evidence
hat notice according to the statute had
been given. But in tins case, there is evil
lence that no notice had been given at
he beginning of the user, and there is no
evidence that notice has been given since.
The true intent and object Of this pro-
Vision of the Statute was that the public
should have notice of the establishment
If the pound, and this being the case, it
hould be given as prescribed, and as it
vas not so given, the exception is sustain
d, and a new trial ordered.
The Attorney General for the Crown.
w. G.. Jones for the Executions