DISSENTING OPINION BY
GALBRAITH, J.There are several reasons why the peremptory writ of mandamus should not issue and these proceedings should be dismissed, among these are:
1. That the defendant is sued as Lyle A. Dickey, not as Lyle A. Dickey, First District Magistrate of Honolulu, and the writ is directed to him in the same form. The court might compel by mandamus the defendant as an official to perform some duty required of him by law and which he refuses to perform, but as an individual we have no power to control his conduct by this extraordinary writ. This proposition is elementary.
2. The section of the statute relied on by the plaintiff reads in part as follows: “An appeal duly taken and perfected in any case from 'a judgment, order or decree of a Circuit Judge ■or District Magistrate shall operate as an arrest of judgment and stay of execution: Provided, however, that the Judge or Magistrate may, upon good cause shown, allow execution to issue or other appropriate action to be taken for the enforcement of such judgment, order or decrees, pending such appeal, ■unless the applicant shall within such time as shall be allowed *598by the Judge or Magistrate deposit a bond in such amount and with such sureties as shall be approved by the Judge or Magistrate (the amount to be not less than double the amount of the' judgment, order or decree, if it is money judgment, order or decree) conditioned for the prosecution of the appeal without delay and for the payment or other performance, as the case-may be, of the judgment, order or decree or part thereof that, may be rendered or affirmed in the appellate court”; * * * * Section 17, Act 32, Session Laws of 1903.
The meaning of this statute is not clear. The plaintiff assumes that it means that notwithstanding an appeal has been duly taken and perfected from the judgment the District Magistrate may, “upon good cause shown” order execution for the-enforcement of the judgment unless the judgment defendant shall file, a bond, etc. The statute does not read that way. It. reads “unless the applicant shall” * * * “deposit a bond”. The “applicant” for what ? The execution ? No. It could not. mean that the plaintiff should file a bond to prosecute the appeal. That would be absurd. He has no control over the appeal and the judgment is payable to him and not by him. Nor can the word “applicant” in this connection by any fair or reasonable interpretation refer to the judgment defendant. He has perfected his appeal and transferred the case to the circuit court, where he is entitled to a trial de, novo and a jury trial if he desires it. He is not an applicant for anything further from the district magistrate or his court.
When “the intent of the legislature” is spoken of I understand that we refer to the meaning of the words used in the-statute, and not to the unexpressed thought that may have been in the mind of the members or the framer of the statute. The-word “applicant” is not a technical word or a term of art but is a simple word in general use. What authority have I to substitute for it another word which I may think was in the mind' of the framer of the statute and which to my mind better effectuates the purpose of the statute than the plain word used ? To-do this is coming very near an act of legislation. Again I have-*599no means of knowing that some members of the legislature did not favor this act for the reason that the word “applicant” was used and might not have favored if the word “appellant” had been substituted for it.
This statute attempts to place restrictions on the right to appeal and the pursuance of the method provided by law to obtain the constitutional right of trial by jury and under all canons of constructions should be strictly construed; under such construction the return of the defendant was sufficient to justify his refusal to issue execution.
If we assume for the purposes of this case, something that we have no right to assume, namely, that through inadvertence or mistake the word “applicant” in this section of the law was substituted for the word appellant then the intent of the lawmaker, as contended for by the plaintiff, would be clear, namely, that it was the purpose to empower the district magistrate to issue execution in certain cases unless the appellant should enter into bond in double the amount of the judgment conditioned to prosecute the appeal without delay and to pay the judgment rendered in the appellate court. In other words the district magistrate is given the power, in his discretion, to deny a litigant the right to a jury trial in a case involving twenty dollars or more unless he shall execute a bond as the magistrate directs. The giving a bond is not made a condition to the right to appeal in all cases but only in such as the magistrate shall order.
Such a statute is of an entirely different character from those approved by the United States Supreme Court (Capital Traction Co. v. Hof, 174 U. S., 1) wherein it was held that “the right to trial by jury is preserved” although the right to appeal from the judgment of a Justice of the Peace, where no jury trial could be had, to the appellate court where such trial was available, were allowed only on paying costs and giving a bond in double the amount of the judgment conditioned for the diligent prosecution of the appeal and the payment of the judgment that might be rendered on appeal. In the class of statutes last mentioned the condition is prescribed by law and is applicable to all *600litigants alike. There is no discretion placed with any Justice of the Peace to require a bond as a condition of appeal in some case and to waive it in others.
The law of this Territory permits an appeal to be taken on paying costs accrued and giving bond for payment of costs on appeal. Ordinarily an appeal duly perfected operates as a su-persedeas and stay of execution. The statute under consideration was evidently intended to restrict the right of appeal and to make it conditional in certain cases. The practical operations of this statute, it is plain to be seen, would permit some litigants to appeal without giving the bond therein prescribed and to deny the benefit of an appeal to others unless the bond were given. In- other words under the operation of this statute the law of appeals to some litigants would be one thing and to others something totally different. A municipal law (and the statute under consideration is a municipal law, if any thing,) is defined as “a rule of civil conduct.” Why a rule ? “It is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform and universal”. 1 Blacks tone, p. 44. No “applicant” or appellant can possibly know whether or not his appeal to the circuit court is to be conditional on his filing a bond to pay the judgment on appeal until the inner thought of the district magistrate has been revealed. The statute is wanting in the essential elements of a law, namely, it is neither “uniform” nor “universal” in its operation. A law must be the same to all litigants, i. e., it must be a rule.
Aside from the foregoing objections this statute if it means what the plaintiff contends it means, placed restrictions and limitations around the constitutional right of trial by jury or method of obtaining it that is clearly beyond the power of the. Territorial Legislature to do. The mandate 'alike to the legislature and the court is that “the right of trial by jury must be preserved.” Placing the power within the discretion of a district magistrate to deny the right to appeal to the circuit court where the right to a jury trial may be had or to make it conditional on *601giving a bond witbin tlie discretion of tbe magistrate is certainly restricting the right in such manner that it cannot properly be said “to be preserved.” In other words it places restrictions on the right to appeal in some cases that is not required in others.
What this court said in regard to this statute prior to the adoption of the amendment now under consideration is equally pertinent in this connection, namely: “There is strong ground for the contention that the issuance of execution on the judgment of the District Court where a jury trial is impossible, pending an appeal to the Circuit Court where such trial is available, is practically a denial of the right to a jury trial. * * * “To be entirely effective this right should be available before the defendant’s property is seized and sold under execution. To seize 'and sell his property and then permit him to have a jury trial to determine whether or not it should have been seized and sold, is, to put it mildly, placing restrictions about this constitutional guarantee that ought not to be upheld.” Wong Chow v. Dickey, 14 Haw. 524, 526, 527.
The statute is wrong in theory. It gives an obvious advantage to the wealthy over the poor litigant. If a bond to pay the judgment on appeal is required as a condition to an appeal it ought to be required in all cases and should not be left to the discretion of a district magistrate or any other officer to say who shall give bond and who shall not before appealing to the Circuit Court.
The peremptory writ should be denied and the proceedings dismissed.