The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-04-21

condition named, that of bond in
double the judgment. is rot imposed
| upon all applicants alike but only upon
some at the mere will OF the magis-
/ trate This objection the court says
would apply equally to appeals from
! circuit judges, and has no relation to
any possible contrayention of the sew
enth Amendment to the Constitution.
providing the right 10 trial by jury, but
must be based and stand. if at all,
| upon the provision of the Fourteenth
! Amendment, prescribing that mo State
shall deny to any person within its
Jurisdiction the equal protection of the
laws"
Upon this the court holds thar the
statute only gives the magistrate "a
judicial discretion to decide in what
cases the bond shall be required, and
goes further by providing that the
bond shall be neQuired only in those
cases in which good cause is shown for
the immediate issuance of execution.
If this discretion is abused, there is a
remedy by appeal. There is no in
equality in the provision. All are
treated alike who are situated in like
circumstances Other conditions of ]
Objectionable to this one if the objec-
ton to it were sustained.
Another point raised was that this
proceeding was brought against Lyle
A. Dickey,n without his official title of |
District Magistrate This is held to
have been waived by the respondent I
in answering to the merits and in |
to a hearing without rails
= I, 1T.
says. ''the petition is capable
opinion concludes thus:
Upon an amendment as to the name
Of the respondent being asked for and
made, peremptory writ should De is
sued directing the respondent to issue
execution at once unless the Judgment
debtor and appellant in the original
action shall deposit the bond required
by law
j. A. Matthewman appeared for the
petitioner. w. C. Achi, against whom
he execution is sought, appeared for
he respondent.
THE DISSENTING OPINION.
Justice Galbraith begins his dissent /
W saying: This court might compel I
" n1andamus the defendant as an Of
lcial to perform some duty required of I
i'm by law and which he refuses to
but as an individual we have
10 power to control his conduct by this
Extraordinary writ. This proposition is
AS to the law he says the meaning
f the statute is not clear. The plain
if assumes that Notwithstanding an Z
ppeal duly taken and perfected the
istrict magistrate may order execu- Z
ion for the enforcement of the judg-
1ent unless the defendant shall file a. I
ond, etc., but, Justice Galbraith says, 7
he statute does not read that way.
lie discusses the wording of the statute
bus:
1T reads unless the applicant shall
eposit a bond The applicant for
hat? The execution? No It could
OF mean that the plaintiff should file
bond to prosecute the appeal. That {
-ould be absurd. He has no control e
yer the appeal and the judgment is t
ayable to him and not by him. Nor
IN the word applicant in this connec-
on by any fair or reasonable inter- 9
,etation refer to the Judgment defend q
1T. He has perfected his appeal and y
ansferred the case to the Circuit
ourt, where he is entitled to a trial
. novo and a jury trial if he desires q
He is not an applicant for anything e
rther from the district magistrate or Y
S court e.
AS to the use of the word applicant a.
self, Justice Galbraith says that when TO
e intent of the legislature is spoken ia
he understands that reference is to pr
e meaning of the words used in the u
atute. To substitute another word TT
r applicant he holds lis coming
ry near an act of legislation" He dt
ID no means of knowing that some tn
embers of the legislature did not ne
vor that act for the reason that the
ord applicant" was used and might tie
t have favored it if the word appel or
ut rad been substituted for it. vi
Further, after saying that under the in
let construction of the statute which WI
ought to have from its attempt at tic
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