14 Haw. 596 | Haw. | 1903
OPINION OF THE COURT BY
This is an action for divorce in which service was attempted to be made by publication. The only exception taken is to the order of the trial judge dismissing the libel on the ground that the attempted service was insufficient.
The statute, enacted in 1870 (Oiv. L. Sec. 1933), provides that in cases of divorce when personal service cannot be made, “an attested copy of the summons shall be printed in the Government Gazette and Ke Au Okoa at least six times,” &c. In the present .case the publication was not in either of those par pers but was in the “Evening Bulletin” and the “Ke Aloha Aina.” This is practically all that appears in the record that is material to the present question. It does not appear why the publication was not made in the papers named in the statute. If this were all that we could consider, there would seem to be no question as to the correctness of the order excepted to.
Service by publication was unknown to the common law. It exists only by statute and so cannot be made except as permitted by statute. Such statutes, being in derogation of the common law, are strictly construed. All courts agree as to this. Galpin v. Page, 18 Wall. 350, 362. Accordingly, when the statute expressly provides that the publication shall be in certain specified newspapers, it cannot be made in entirely different ones. The trial judge cannot make statutory láw, much less can he repeal or amend existing statutes.
It is argued, however, that publicity is the object of the-statute and that that object is effectuated by publication in other newspapers as well as by those named in t-hei statute. But not only does it not -appear that as wide publicity would be given by publication in the papers in question as in the papers named by the
The difficulty in this case, however, arises, not from'what appears on the record, but from what it is taken for granted the court knows or is supposed to have judicial knowledge of, to the effect that the papers named in the statute; not many years after the enactment of the statute, not only ceased to1 be controlled by the Government, if they were so controlled when the statute was enacted, but ceased to exist under the names set forth in tho statute, and that it liás been the practice during much if not all of the time since for the trial judges to order publication in cases of this kind in other papers. Hence the arguments of contemporaneous and continuous construction and hardship' are urged.
AVe are not aware that any one ever doubted that strict compliance with the statute was necessary so long as the papers
The exception is overruled and the order excepted to affirmed.