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*303ing them to commence their suits anew in another tribunal, and by rules of procedure not existing when they brought their actions, is evident. They lose in time and e'xpense incurred on the strength of their reliance upon the laws. It is claimed that no person has a right to expect the tribunals or rules of procedure which exist at the time when he brings an action, to continue until his cases are decided. This may be admitted as sound doctrine, provided a competent tribunal be furnished to decide the actions brought before the change in the law, and that the change in the procedure do not destroy or materially affect the right of action or ground of defence in actions previously commenced. There are many decisions of great interest in the United States concerning laws which impair the obligation of previous ' contracts, or affect the decision of pending cases. Statutes of limitation, Bankruptcy Acts, laws making parties witnesses in their own cases, abolishing old and creating new tribunals, or requiring actions to be brought in different form, have given rise to numerous suits in which arguments of eminent counsel, and opinions of Courts of distinguished ability, have illustrated questions like that now before us. The cases on some points thus presented appear to be irreconcilable with each other, but I have failed to find any decision , that a clear statute remedy can be taken from any party in a pending case without some pretence of an equivalent, and that a right of action in such a case can be directly destroyed. Such, however, is the result of the construction urged by the learned counsel. The libellant alleges that the adultery was first known to him about December 28th, 1869. The Act of 1870, by its express terms,. makes it impossible for the divorce to be granted, inasmuch as the limitation of one year from discovery of the offence, has now expired. There was no limitation of the kind under the previous law.
The first rule which applies in the construction of statutes is, that they are not to be construed so as to affect pending *304cases and cause hardship to innocent parties, unless their terms are so explicit that no other construction can fairly be made. ■
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 *305this case, it is enough to say, that all remedy would be destroyed, and that the tribunal before which it was brought is not abolished. The Justices of this Court still sit at Chambers, but their jurisdiction over divorce causes is for the future transferred to the Court in term time. If an Act which destroys the right of action of parties in Court, depriving them of their remedy and furnishing no other in its place, is not retrospective legislation, in its most odious form, in a civil cause, I am at a loss to know what would be a retrospective law. Nay, more, what would this be, but assumption by the Legislature of judicial function, to decide causes before the Courts ? Would the ease be any stronger if the Legislature should enact that all actions pending in Courts should be dismissed unless brought'within six months after the right of action accrued, or that in no pending ease should any statute of limitation be pleaded in defence ? I can take no other view than this, unless that legal securities for “ life, liberty and property,” whether provided by statute, by the Constitution, or by the general principles of law as laid down by all writers on jurisprudence, are mere fictions of the mind, which Judges or Legislatures may set at naught as they like. But decent respect for legislative wisdom and sense of justice forbids me to suppose they intended to destroy or impair any right in pending suits.
W. C. Jones for the libellant. S. B. Dole for the libellee.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.