The Hawaiian gazette., 1876-12-06

Il supreme OOuFt al CudinOeTS lOI ntIb Ol Didn--
damus to compel the Police Justice to certify up
tsthe said appeal.
An order to show cause was issued returuable
90 the Both August The Police Justice sent
up his record and submitted that upon the re.
cords he was right in refusing the appeal, thus
exhibiting the whole case at once Argument
was had aud the Writ was, on the 23rd October,
1876, refused.
The petitioners noted an appeal, verbally. the
same day, and on the 25th October the ATTORNEY
General appeared belore the Supreme Court.
then sitting 10 Banco ut the Term. and asked
4 the court to set some time in vacation for HEAR
ing the question he intended to raise as TO whe-
Their au appeal would lie from an order at Cham
beers refusing Writ of Mandamus The court
set the 2nd Of November for the hearing und
the counsel for the petitioners took notice. The
Supreme Court adorned size die On the 9th Of
| October.
The members Of the court came in on the 2nd
November, bnt the case went over until the 3rd
when the Attorney General moved 10 dismiss
the appeal on the ground that tire order Of The
! First Associate denying the Writ could not be
appealed from The counsel for the petitioners
Submitted that he is not called upon TO present
his case, because under the Statute and Rules Of
Court the appeal aud all questions concerning i;
come on for hearing at the next regular term OF
/ the Appellate Court. -nfeg
Section 859 Of the Civil Code allows an appeal
to the full Court in Bunco from any decision,
! Judgment order, or decree made by any Justice
of the Supreme Court at Chambers. There is
nothing in the Statute limiting The power of the
court to hear such appeals to their sessions dur
ing the four regular law terms prescribed by
] Statute. -ig e. s7g
II the original jurisdiction being at Chambers
may be invoked at all times, the Statute allow
ing an appeal should not be construed SO as to
abridge The rightsOl such suitOFs, unless II is so
clearly expressed, Before the promulgation of
Rule Y ii was the uniform practice Of The 5Su-
preme Court to hear cases on appeal from deci.
! sions made by Justice at Chambers at any
time when the members of the,court could be
called together in Ba1co. This was found 10 be
conducive of delay from there being no fixed
time at which such appeals must be heard, and
in 1871 the rule was lrumed, the last paragraph
of which reads All appeals duly taken shall
be heard at the next regular term Of the Appel
late Court" II this rule limits the authority of
the court. so that no longer any authority exists
to hear appeals OF this nature in Banco at Cham
bers. it would follow that they can hear DO appeal
except at the regular law term of the cOur: and
an appeal from a Judgment Of a single Justice
sitting as Court of Admiralty condemning or
releasing foreign ship, could not be heard until
the recurring Of regular law term, and the sug-
gestion made By the counsel for the petitioners
at the hearing that special term might be
holden would not be of any avail to prevent the
working Of injustice through the construction
which Is offered for the defendant, because that
then it would be argued that the rule prescribes
the hearing at he next "regular term" and
special term" is not q regulnr term"
The fact is that the rule was made to secure
prompttude and not to interpose delays We
construe the rule to mean that all such appeals
must be moved on, and shall be heard at least as
early as the next law term of the Appellate
Court, and does not limit the authority of the
court TO hear IN appeal IN vacation when justice
may seem to require it. In this particular in
stance, it was a mere accident that the judgment
now appealed from WAS not given in the early
days Of the term or even before the term com
menced, and certainly it would be far from Just
ice TO say that the court could not or would not
hear case which has been so delayed and which |
has been pending long time, when there is no
real reason TO prevent its being heaid.
The petitioners claim that u wrong has been |
done them and very properly they come quickly |
to one OF the judges of this court for redress ard
not obtaining it as hoped for from him. they ap- |
peal to the Iull court and it is Of course the !
duty of the court to give them the redress (if |
they are entitled to any, as soon as possible.
1t would not be supposed that the petitioners |
would desire any delay In rectifying the wrong of
which he complains.
The Attorney General contends that The ap- |
peal should be dismissed, because Writ of Man |
damus is high prerogatye writ, to be issued in |
such cases as this at the discretion Of the court |
invoked, and as its allowance is, under the word |
ing of the last paragraph of Section 959 of the |
Civil Code, not appealaole. so its refusal is not
appeaable. In view OF the wording of the Sta
tute we see no reason for refusing to allow the |
legal discretion exercised by single justice in
matters go important as this to be reviewed by /
the Court in Banco. This is certainly much |
better practice than the other course to which |
parties would be driven, of being obliged, if the
Mandamus was refused by One judge, to apply to
another.
We notice also that in the case of John Thos
Waterhouse, Haw. Reports, p. 25l, an appeal !
was thus taken on the refusal OF the Chief Just /
ice to issue Writ of Mandamus.
There remains now the final question as to |
whether The Writ should be allowed. As indi.
Gated above, the Police Justice in complying +
with. the order to show cause, has sent up bis /
whole record as fully as ifa Writ Of Error or a
Writ OF Certiorari had been asked for and
granted.
We are. therefore, furnished with as complete
q knowledge of the case as il it bad come up on
uppehl Lie Cdse OF Tue minister OF Tue Interior
vs. Glover { April Term, 1861 decides that in
actions like the one from which these proceed
inga have arisen there is no appeal to jury on
issues of fact An appeal then only remains
upon exceptions to the decision of Police Court
on points Of law in accordance with the last para
graph of Section 1905 of the Civil Code. These
points of law must always be made TO appear.
We find nothng in the papers sent up except
the one objection made by the defendants that
The execution Of the bond was not sufficiently
proved. But the record itself shows that the
witness to the bond gave testimony
which satisfied the Police Justice. Upon re-
viewing it, we find that there vas satisfactory
proof of the execution of the bond, and that the
Police Justice committed no error Of law in find
ing the bond proved.
The Writ prayed for is therefore denied.
CHAs- q. HARRIS,
A. FRANCIS JUDD,
Justices Of the Supreme Court.
A. S. Hartwel, for the petitioners the At
orney General, for the respondents.