Year: 1861

| w. E. HALLIDAY WILLIAM Srorr-O Opinion of Chef
Justice AHe1g


The libellant alleges substantially, that NJ NJ Web
ser, late of Honolulu, indebted to him in the sum
of S64 for work and labor, and fearing that he might
leave the Kingdom without paying his Indebtedness he


fled written notice thereof with the Collector General
of Customs, accompanied by request that he would
not grant him passport, and that, subsequently, Will


liam Stott master of the bark Comet conveyed out of
the Kingdom said Webster. who had not obtained
passport to leave the Kingdom required by law aud
said hbeant now claims that said respondent has
dered himself liable to pay the debt which Webster
| owed him.


The respondent answers that he had no knowledge
of the Indebtedness of Webster to the belant and that
ie did voluntarily knowingly carry said Webster
out of this Kingdom on board of the bark Comet or that
he had any knowledge of said Websters leaving the
kingdom without a passprt as required by law. He
answers further that he took command of the vessel
on two or three hours notice, by request of the master
and agents for voyage to California and back with
out any knowledge Of the persons board, either
or sailors, and that he proceeded about
two oclOck Saturday, the Sth of September last,
and that in two hours thereafter the bark beyond
the jurisdiction of this Kingdom and further that he
did not know that said Webster on board till the
Monday evening following, when the vessel some
four or five hundred miles from this Kingdom, and it
was impraccable to return without great loss and dam
age The provision Of the Code under which the
pondent is sought to be made liable is in these words





shall nvey out of this Kingdom. any person hav


ing passport, shall be subject to fine of fifty dollars,
and be liable for all debts which such person may have
left unpaid in this Kingdom and if he shall fail pay
such fine and debts, such vessel shall be subject to sez
ure, condemnation and sale for the payment thereof
provided always, that Of the provisions of this
section, article, shall be construed applicable to
any seaman legally shipped board of any vessel.
[Sec. 65I, Civil Code


Satisfactory evidence was adduced that Webster was
indahfad IN Halliday allpgad and adj ftal
that written notice had been given to the Collector Gen
eral by three persons alleging the Indebtedness of Web
ster, and acc mpaned by request not TO grant him
passport and that the beant of these persons
1t is further admitted that Webster did not obtain
passport required by law and that it was notorious
in the community that he had attempted to get away
1t conceded, the part of the lbeant that the
respondent had knowedgeo of Webster being board
the vessel till the vessel beyond jurisdiction.


So far the liability of the of the vessel is
concerned for the debts of the person carried of the
Kingdom, without passport the present law Is re-
enactment of the law Of 1876. Our situation affords
peculiar facilities for escape, and at this early day this
provision regarded necessary to protect people
from loss by abscondng debtors 1t has afforded great
protection and secured the people from much trouble
and anxiety from apprehension of escapes In re-
ports find but one suit founded upon this statute
and that in the of Sawyer Paty in which Chief
Justice Lee says that, The language of the law Clear
direct and unmistakeabe, and cannot be violated with
mpunity. The burden is upon the master of the ves
sci to that his passengers have the passports requr
ed by law, and if he negecs to do So and takes them
out of the Kingdom without such passport, he vounta
riy the responsibility of paying their debts"


But it is said that Harris has returned and with


in the jurisdiction of the Court at the commencement
of this suit and, hence, that Sawyer has sustained
loss by his departure and ought not to hold Patty re-
sponsibe. That Sawyer has sustained loss does not
appear, and it is matter have right to presume
But granting that it so, it would not relieve
Capt. Patty of the liability he has incurred to pay the
debt This statute was made pro bono pubco and Its
construction admits Of no doubt.


The respondent says that he left in command Of the
Comet notice of two or three hours and that he did
not know that Webster board till some two days
after he left the port, and that he could not return
without serious injury and damage to the parties inter-
ested in the freight well in the vessel. 1t will
hardly be seriously eontended that this law may be
violated with mpunty by substituting master at
the last moment of sailing In this case the Court
that there intention of this sort but the
consequences none the less serious to the hoeant
and it is very clear that it would be very easy to make
the law nugatory if this was regarded as defence 1t
would have been nconvenen and loss to have return
ed but when loss is to be incurred, who should bear
it. the person who has violated the law the one for
whose protection against injury the law was enacted


The counsel for the respondent contends further
that he did not take Webster out of the Kingdom
Voluntarily and knowingly, that he has not violated the
law and is therefore not liable What then is the true
construction of the statute Its language is without
qualification, and the ruling of the Court on its con-
sructiOn is clear and explicit applicable TO the case
Of passenger knowingly received on board without
passport, and conveyed beyond jurisdiction. And
this is the distinction in the two The law makes
imperative all persons who have resided here thirty
days apply the Collector for passport when they
wish to leave the Kingdom. In case of Indebtedness,
in this case, the party may file his objection to
passport being granted, and if is granted the Col
ector cancel it for cause and if he refuses to do
makes himself liable to fine. Ii is further provided,
that if any person who shall depart from any port in
the Kingdom with the intention of leaving the same,
without first obtaining passport, shall be subject to


fine not exceeding $780, in the discretion of the Court,
and then follows the provision imposing the liability of
the MASTER or commanding officer, of vessel The
law is drawn with care, providing every precauton
against escape and with this intent so clearly given,
any construction which would defeat Its effectiveness
would certainly be as much against Its spirit it is
clearly against its letter. 1t will be that the law
is very rigid the subject of passports. and being
the liability of the master Of vessel who should dis
regard their necessity for passengers would seem to be
inevitable, the law would be wholly inefficient, and
the used to prevent passports being given idle


While Courts will not question or control the author
y Of statute if clear and explicit in its terms and
in accordance with the Constitution Of the Kingdom 1t
is still their duty to give them reasonable construc
ton They will regard it within the contemplation
of law, that consequences Of injustice absurdty
should follow from the terms Of any Law. The intention
of the Legislature in the statute, upon which the libel
LIANT relies, is very clear it was designed 10 protect
people here from injury by abscondng debtors,
situation being insuar and the facilities being great
for escape, some provision deemed necessary to
prevent loss. Literally the law admits of but
sruction. If master of a vessel conveys a man out
of the Kingdom, he is liable for his debts


On the part Of the respondent is commended that it
being penal statute it must be proved that he knew
that the man board Of his vessel when he left
the Kingdom. This is in accordance even with the
fully recognized doctrine Of criminal negligence in
cases Of omission. In the case of Regina rs. Lave,
Cox C. c., Lord Campbell, Chief Justice, says: 81
clearly Of opinion that act Of omission as wen as
of commission may be so criminal to be the subject
Of an indictment Of mansaughter' In this case, the
law prohibited the respondent from carrying Webster
out OF the Kingdom without passport He admits
that he has done it. and for justification says that he