Dissenting Opinion op
Mr. Justice McCully.It is a recognized principle of law that appeals are dependent on the statute creating them and that the terms of the statute *624must be strictly followed. This has been recognized by many decisions in this Court, appeals being held insufficient where there has been any failure to do what the statute requires. A right of appeal cannot be implied but must be given by express words. Reg. vs. Hansen, 4 B. and Ald., 521 ; Reg. vs Stork, 8 A. and E., 405.
The statute under consideration amends the previous appeal laws only by the words, “and no further or other appeal on any question of fact shall be allowed.” The preceding words, “at the election of the party appealing, to be stated at the time the appeal is taken,” do not vary the former law, for Section 1005 gave an appeal from the decision of a police or district justice to the circuit judge at chambers (or if on the Island of Oahu to one of the Justices of the Supreme Court by the Act of 1874, Compiled Laws, p. 255,) and Section 1006 gave an appeal from the police or district justice to the Supreme or Circuit Courts (with the amendment of 1884) as the judicial district might be. The party taking appeal had his election which of these appeals he would take, which implied and required that he should state it at the time, and so it was always done. The only new matter, viz., that no further or other appeal on matters of fact should be allowed, is plainly intended, and this is not gainsaid by any one, to limit the number of appeals. A question of fact may not be tried in a third court. The construction that there may be an appeal to the third court by the appellee might nullify this intention in every case where the appeal has been taken to the judge or justice in chambers and he has reversed or changed the amount of the first decision. The intention to allow one appeal to each party, and only one, should be expressed by such words as these, “ and he (or, the appellant,) shall have no other or further appeal on any matter of fact ” or, “ no other or further appeal, etc., shall be allowed him.” The existing law would then give the appellee his appeal to a court and jury. By the construction asked for by the defendant, we make the words used in the statute to be equivalent to those I have given. But they differ substantially. *625Those in the statute absolutely close the appeal. A different expression must be used to allow to one of the parties a further and othgr appeal.
“ The right rule of construction is to intend the Legislature to have meant what they have actually expressed, unless some manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would not be the right one.” Per Parke, J. in Reg. vs. Inhab. of Banbury, 1 A. & E. 142.
Where a statute is expressed in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. Jackson vs. Lewis, 17 Johns., 475; People vs. N. Y. Cen. R. R., 13 N. Y., 78.
When words per se are repugnant and very absurd, what is necessary, it has been said, may be supplied by reasonable intendment and good construction. But it must be so supplied ex visceribus actus. A new term cannot be added to an Act, a new sense may. Potter’s Dwarris 210, from which also the above citations are taken.
The above are common rules of construction. I submit that they sustain the view I have taken. Granted that the intention of the Legislature was to limit the number of trials of fact in any case, this construction effectuates that intent and the other does it only partially. This construction leads to no absurdity, incongruity or repugnancy. It does not need anything to be supplied by intendment. I think the other requires a new term to be added to the Act, and this is not allowable, for it is not ex visceribus actus.
I do not understand that any other construction would be given except on the ground that the constitutional right of trial by jury might be hereby denied, which is a reason not derived from the context of the Act. Doubtless it is to be supposed that the Legislature intends to enact only constitutional statutes ; but if the words used when plainly construed give an unconstitutional effect, it seems to me that we must accept *626the result that the statute is unconstitutional. The intention or the intended meaning of a law is a different thing from the presumed intention or purpose that it be not unconstitutional. It is only to the former species of intention that the rule of construing to intention applies. The latter is of the same presumption as the intent that the law shall be wise or wholesome.
W. O. Smith, for plaintiff. A. Rosa, for defendants.Chancellor Kent says (1 Com., 468): “When the intention of the law can be indubitably ascertained, and be not a violation of constitutional right, the courts are bound to obey it whatever may be their opinion of its wisdom or policy;” but I do not understand this to mean anything more than that the law must be carried out according to its intendment, as derived from the words, or set aside as unconstitutional when the effect is unconstitutional.
The Court is not bound to give a rendering not found in the words of a statute, they being apt to express the object intended by the Legislature, in order to make them constitutional.
It is easy to surmise that when the Legislature desired to prevent three trials of fact it was not considered that by one party electing to go to the court in chambers the other party could not thereafter get to a jury.
I am compelled, on these considerations, very respectfully to dissent from the opinion of the Court.