3 Haw. 300 | Haw. | 1871
The Act of 1870 has no express clause in favor of pending eases at Chambers, and the first point for consideration is whether it was the intention of the Legislature that such cases should be decided under the old law according to the rules of procedure, and on the grounds of divorce which were in force when they were begun, or that all jurisdiction over those cases at Chambers is taken away, requiring them to be dismissed and brought under the new Act. If the latter view be correct, then it is to be considered whether the Act is to that extent unconstitutional and void.
The hardship of legislating parties out of Court and requir
The first rule which applies in the construction of statutes is, that they are not to be construed so as to affect pending
In looking at the terms of the Act of 1870, it will be seen that its first section merely enumerates causes of divorce, the same as under the previous law. Section 2 provides that the Supreme Court shall exercise jurisdiction in cases on Oahu, and that all such cases shall be regularly entered &c. The remainder of that section refers only to cases so entered, and to divorce proceedings before the Supreme Court. So Section 3 provides that all proceedings for divorce shall be commenced by libel, &c., and the remainder of the Act, unless in the repealing clause in Section 12, applies expressly to libels so instituted before the Supreme Court, and no;t to previous cases begun at Chambers. In view of the express terms of the Act, and of the general provisions of the Civil Code, saving the rights of parties in pending suits, I am clearly of the opinion that this Act was intended to be prospective. In reading the clause which repeals “all Acts authorizing divorce cases to ✓be heard at Chambers, and all Acts and parts of Acts inconsistent” therewith, my inference is not that the Legislature thereby intended to cut ofi' the right of parties in pending cases, but on the contrary, that it was deemed that the Civil Code fully saved their rights. I have no hesitation in declaring this to be the correct view, in the present case, where the new Act would destroy the right of action.
But if it were held that this Act in fact repeals all the previous Statutes in favor of pending cases, then such repeal, as far as it destroys the present libellant’s right of action, is opposed to the spirit and letter of the Constitution, which declares that “no retrospective law shall be enacted.” As for the argument that parties have no right to any peculiar form of remedy, or to the continuance of any- particular tribunal,, it may be considered in cases where it applies. In
If this be deemed useless refinement on Constitutional questions, I can only say that the ease presents the points, and that I doubt the possibility of making the fundamental law too clear and imperative.
The majority of the Court do not give any opinion on the Constitutionality of the Act (as affecting this case), as in their view it is unnecessary by reason of its prospective nature, under the provisions of the Civil Code concerning pending suits.
The judgment of the,Court is, that the exceptions are sustained, and the cause remanded for judgment.