W. Au Hoy v. Ching Mun Shee , 33 Haw. 239 ( 1934 )

I am unable to agree with the majority of the court that the writ of error was improvidently issued. The filing marks on the documents appear as follows: "Application for Writ of Error Assignments of Errors. Filed June 28, 1934 At 1:30 o'clock P.M." "Writ of Error. Filed June 28, 1934 and issued same At 1:31 o'clock P.M." "Bond. Filed June 28, 1934 At 1:32 o'clock P.M."

The statute (§ 2529, R.L. 1925) provides that "no writ of error shall issue until * * * a bond has been filed with the clerk * * *." It is the conclusion of the majority that the writ issued in fact one minute before the requisite bond was filed and therefore it issued illegally and must be quashed. I do not agree with this conclusion. In reaching it the majority opinion places too technical and narrow a construction upon the statute and in adhering to its letter its purpose and spirit have been overlooked.

In construing the statute the established rules of construction should be borne in mind. In Hawaii v. Mankichi, 190 U.S. 197, the court said (pp. 212, 213): "But there is another question underlying this and all other rules for the interpretation of statutes, and that is, what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail, even against the letter of the statute, or, as tersely expressed by Mr. Justice Swayne in Smythe v.Fiske, 23 Wall. 374, 380: `A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.' A parallel expression is found in the opinion of Mr. Chief Justice Thompson of the supreme court of the State of New York, (subsequently Mr. Justice Thompson of this court,) inPeople v. Utica Ins. Co., 15 Johns. 358, 381: `A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute, is not within the statute, unless it be within the intention of the makers.' Without going farther, numerous illustrations of this maxim are found in the reports of our own court. Nowhere is the doctrine more broadly stated than in United States v. Kirby, 7 Wall. 482, in which an act of Congress, providing for the punishment of any person who `shall knowingly and wilfully obstruct or retard the passage of the mail, or any driver or carrier,' was held not to apply to a state officer who had a warrant of arrest against a carrier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. `All laws,' said the court, `should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' A case was cited from Plowden, holding that a statute, which punished a prisoner as a felon who broke prison, did not extend to a prisoner who broke out when the prison was on fire, `for he is not to be hanged because he would not stay to be burned.' Similar language to that in Kirby's case was used in Carlisle v.United States, 16 Wall. 147, 153."

In aid of construction of laws section 12, R.L. 1925, provides that the spirit and reason of a statute may be considered. That section reads as follows: "One of the most effectual ways of discovering the true meaning of the law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the legislature to enact it."

The word "issue," which is the crux of the question, is not a word of art. It should therefore be interpreted according to the circumstances in which it is used. And when, as here, it is used in a statute it should be given the meaning that comports with the end intended to be accomplished by the lawmaking body. It is obvious that the end sought to be accomplished by the writ of error statute is that a judgment obtained in the lower court shall not be suspended and the right of its enforcement delayed by removal of the cause to this court unless the party in whose favor the judgment was rendered has received the protection of a bond against loss of the fruits of his victory. I think it cannot be questioned that so long as the writ, which is the mandate of removal, is not served on the designated officer of the lower court it is ineffective. Until it is served the cause in its entirety remains under the jurisdiction of the tribunal wherein it originated.

It is my view that when and only when the mandate reaches the lower court can it in any sense consistent with the purpose and spirit of the statute be said to have issued. Placing it in the hands of the clerk, I think, is not its issuance. It is preliminary to its issuance. It merely gives him something which he is authorized to issue, that is, to serve. If for any reason it should never be served on the officer to whom it is directed the case and the parties with all their rights and liabilities remain in statu quo. Of course if the writ issues, as I understand that term, before the bond is filed, manifestly the spirit of the statute is violated and the writ should be dismissed.

It is evident from the record in the case at bar that the bond was filed before the writ issued. It appears from this record that only one minute elapsed from the filing of the writ to the filing of the bond. These two acts were so close to each other in point of time as to have been practically simultaneous. It is hardly conceivable that during this almost inappreciable time (one minute) the writ was transmitted to the circuit court. To assume, in the absence of proof, that this was done would be to assume that when the writ was filed it was instantly, and before the bond was filed, taken to the clerk of the circuit court. This would be such an extraordinary procedure as to be beyond the realm of probability. The inclusion of the words "and issued the same" in the clerk's indorsement upon the writ certainly is not sufficient to imply that any such procedure was followed.

I think the Hackfeld case, referred to in the majority opinion, is not conclusive against this view. In that case it does not appear either in the record or in the opinion of the court what time intervened between the filing of the writ and the filing of the bond.

There is another provision of the statute which requires the applicant for a writ of error to deposit the sum of twenty-five dollars to cover costs before a writ shall issue. It can hardly be imagined that the payment of this amount immediately after instead of immediately before the execution and filing of the writ would justify its dismissal. Similarly, I think the filing of the bond immediately after the execution and filing of the writ instead of immediately before does not justify the dismissal of the writ. In both cases I think a literal construction of the statute is entirely contrary to its purpose and spirit.