The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-04-23

be allowed The preceding words,
"at the election of the party appeal
ing to be stated at the time the appeal
is taken" do not vary the former law,
for Section 1905 gave an appeal from
the decision Of police or district jus
tice to the circuit judge at chambers
Tor if on the Island Of Oahu to one Of
the Justices of the Supreme Court by
the Act of 1874, Comp. Laws, p. 255),
and Section 1905 gave an appeal from
the police or district justice to the
Supreme or Circuit Courts with the
amendment of 1881 as the judicial
district might he. The party taking
appeal had his election which of these
appeals he would take, which implied
and required that he should state it
at the time, and 50 it was always
done. The only new matter, viz :
that no further or other appeal on
matters of fact should be allowed, Is
plainly intended, and this is not gain
said by any one, 10 limit the number
Of appeals. A question of fact may
not be tried in a third court. The
construction that there may be an
appeal to the third court by the APP
peilee might nullify this intention
in every case where the appeal has
been taken TO the judge or justice in
chambers and he has reversed or
changed the amount of the first de-
cision. The intention to allow one
appeal TO each party, and only one,
should be expressed by such words as
these, and he Tor, the appellant
shall have no other or further appeal
g Fsa y,n At
or further appeal, etc, shall be allow
ed him" The existing law would
then give the appellee his appeal to
court and jury. By the construction
asked for by the defendant we make
the words used in the statute TO be
equivalent to those l have given.
But they differ substantially. Those
in the statute absolutely close the APP
peal. A different expression must be
used to allow to one of the parties a
further and other appeal.
" The right rule of construction Is
to intend the Legislature to have
meant what they have actually eN-
pressed, unless some manifest Incon-
gruity would result from doing so, or
unless the context clearly shows that
such a construction would not be the
right one" Per PaTke J. in Reg. as.
IHbo5. OF BaRbury, A. y 4. H..
Where a statute Is expressed in clear
and precise terms, when the sense is
manifest and leads to nothing absurd,
there can be no reason to refuse the
sense which it naturally presents.
Jackson as. LcUiS, II John. 40.
People rs. N. Y. Gen. II. r., IL n.
Y. rs.
When words per sc are repugnant
and very absurd what is necessary, IA
has been said, may be supplied by
intendment an4goOd con
struction But it must be so supplied
ez UisceriJlts uctJS. A new term can
not be added to an Act, a new sense |
may. Potter's Dwarris 30, from
which also the above citations are
taken.
The above are common rules of con- |
| submit that they sus-
tain the view / have taken. Granted |
that the intention of the Legislature !
was to limit the number of trials of |
fact in any case, this construction |
effectuates that intent and the other
does it only partially. This cOnstruc- |
ton leads to no absurdity, incOngruty |
OF repugnancy. 1t does not need any |
thing to be supplied by intendment.
| think the other requires 4 new term |
to be added to the Act, and this is not
for it is not CT UiScey j5uS |
Tctus.
/ do not understand that any other
would be given except |
IN the ground that the constitutional
light of trial by jury might be hereby
lenied, which is a reason not derived
rom the context of the Act. Doubt
ess it is to be supposed that the Leg
AZURE intends to enact only constitu-
ional statutes, but if the words used
when plainly construed give an I'M
effect it seems to me
hat we must accept the result that
he statute is unconstitutional. The
Intention or the intended meaning of
. law is a different thing from the
presumed intention or purpose that it
De not unconstitutional. 1t is only to
he former species of intention that
he rule of constituting TO intention
lpplies. The latter is Of the same
as the intent that the
aw shall be wise or wholesome.
Chancellor Kent says, l Com. 46S,
When the intention Of the law can
,e Individually ascertained, and if be
lot a violation of constitutionalrig
he courts are bound to obey it what
yer may be their opinion of its wis
Iom or policy but | do not under
tand this to mean anything more
han that the law must be carried out
to its intendment, as de-
lived from the words, or set aside as
when the effect is
The court is not bound to give a
not found in the words of a
tatute, they being apt to express the
bject intended by the Legislature, in |
rider to make them constitutional.
1t is easy to surmise that when the
legislature desired to prevent three
rials of fact it was not considered
hat by one party electing to 60 to
he court in chambers the other party
ould not thereafter get to a jury.
/ am compelled, on these consider
lions, very respectfully, to dissent
rom the opinion of the Court.
Isaac Rich & Co., the Oldest fish
,arobaptc IN ROc+on arc ambar |