In re Pringle

DISSENTING OPINION OP

QUARLES, J.

The paramount question «raised by the demurrer to the return of the respondent involved in the question reserved to this court is, whether the third judge of the first circuit has power to dismiss and appoint clerks to transact the business of the court presided over by him “without the concurrence or acquiescence” of the first and second judges, or either of them, of said court. The law relating to the appointment of clerks of the supreme and circuit courts, as it has existed in this jurisdiction since 1892, is found in section 1680 P. L. 1905, and in Act 54 S. L. 1907, amending the said section, and is stated at length in the majority opinion. The statute was amended by Act 84 S. L. 1911 (now Sec. 2314 P. L. 1915), also set forth in the majority opinion. The solution of this question. requires an interpretation or construction of that portion of the last statute which relates to the appointment of circuit court clerks, namely, “There shall be as many clerks of the circuit courts as may be necessary, appointed and removable by the judge or judges thereof, as the case may be.” The majority opinion construes this provision as requiring the concurrent action of the three circuit judges in the first circuit in the matter of appointing and re*570moving clerks acting in the divisions over which the several judges preside. With that construction I am unable to agree, for the reasons which I will now state.

Section 14 R. L. 1915 provides that words in the singular or plural signify both singular and plural, and this provision follows a well recognized rule of statutory construction. “Wien necessary to give effect to the legislative intent, words in the plural number will be construed to include the singular, and words importing the singular only will he applied to the plural of persons and things” (36 Cyc. 1123). The intent of the legislature must be ascertained and given effect. This intent is gathered from the language of the statute giving to the words used their usual signification. “Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one; and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benelts intended. Eor the purpose of determining the meaning, although not the validity, of a statute, recourse may be had to considerations of public policy, and to the established policy of the legislature as disclosed by a general course of legislation. * * * If the purpose and well ascertained object of a statute are inconsistent with the precise words, the latter must yield to the controlling influence of the legislative will resulting from the whole act” (36 Cyc. 1110, 1111). All statutes relating to the same subject should be consulted so as to ascertain and give effect to the legislative will. Looking at the statutes relating to the appointment of clerks for the courts as they existed prior to the amendment of section 1680 R. L. 1905, as amended by Act 54 S. L. 1907, by Act 84 1911, we find that the appointment and removal of clerks was made in part by the justices of the supreme court and in part by the circuit judges, and some of the clerks acting as clerks both in the supreme and *571circuit courts, and we find it the established policy of the legislature to authorize and to permit each circuit judge to select, appoint and discharge the clerks acting before him or the department over which he presides. The principal object to be accomplished by the last amendment hereinabove quoted, as well as the evil to be remedied, was to separate the duties of the clerks in the supreme and circuit courts and to take from the justices of the supreme court all power or authority in the matter of ajipointing clerks in the circuit courts, to the end that each court would appoint and remove its own clerks, and such clerks would act only in the court for which appointed, except in the matter of filing papers in the outside circuits by the clerk of the supreme court acting ex officio. There is nothing in the statutory provision in question which, shows an intent that the three judges in the first circuit should get together and appoint clerks to act in the several divisions, -or before the several judges. There is nothing in the statute itself which shows an intent to overturn the settled policy, theretofore pursued, by the legislature, in the provisions which gave each judge in each circuit the power to appoint and remove his own clerk and assistant clerk. The provision now under consideration should not be so construed that the phrases “appointed and removable by the judge or judges thereof, as the case may be,” mean that the three judges in the first circuit must get together and act as a body in order to appoint or remove a clerk to act before one of them. Such construction ignores the rules of construction heretofore adverted to and enunciated in Cyc. and in section 14 R. L. 1915; goes beyond the provisions of the statute in question; and, by the rule announced in the majority opinion of this court, requires certain matters of court business to be transacted by the three judges of the first circuit, acting conjointly, contrary to the entire scheme under which the judges act in the said circuit. Chapter 131 R. L. 1915, under the heading “Circuit Courts,” provides the mode and manner in-which circuit courts transact business in this Territory. By sections 2263, 2265 and 2277, found in *572said chapter, it is especially provided that where two judges or more act in the same circuit each shall act separately, whether in open session of court or in transacting work at chambers, and the whole scheme is for the judges in the first circuit to act separately and independently of each other, so that, in fact, in the first circuit, instead of having one circuit court, we virtually have, in effect, three circuit courts. “It is an established rule in the construction of statutes, that a subsequent statute, treating a subject in general terms, and not expressly contradicting the provisions of a prior act, shall not be considered as intended to affect more particular and positive provisions of the prior act, unless it he absolutely necessary, to do so in order to give its words any meaning” (Fosdick v. Perrysburg, 14 Ohio St. 472).

The petitioner contends with much force and reason that under the statutory provision being considered each circuit judge has power to appoint and remove the clerks who transact the business of the court, so far as the same is presided over hv him. The respondent contends with much earnestness and force that under said provision it requires the joint or concurring action of the three judges to appoint or remove a clerk. We thus have two constructions of this statutory provision by the parties to this proceeding, each differing from the other. These divergent views — neither without grounds therefor — indicate that such provision may mean one of two things, each differing from the other; in other words, that the statute is ambiguous. We must therefore consider the rules for statutory construction under like circumstances. “An ambiguity exists in a statute where it is susceptible of two or more different meanings or applications without doing violence to its terms” (36 Cyc. 1118. See also Lewis’ Suth. Stat. Const., Sec. 310). The court should look at the pre-existing law upon the same subject so as to ascertain the changes contemplated by the new statute and should consider the history of the enactment of the statute (Bank v. Collector, 3 Wall. 495; Texas & Pac. Ry. Co. v. Interstate Com. Com., 162 U. S. 197; Ex parte Crow Dog, 109 U. S. 556; Bates v. *573Clark, 95 U. S. 204; Flanders v. Merrimack, 48 Wis. 567; Solomon v. Commissioners, 41 Ga. 157). The reason and purpose of the new act are considerations of great weight (Smythe v. Fiske, 23 Wall. 374). The proceedings of the legislature, especially committee reports made during the progress of the bill through the legislature, may be considered to ascertain the intent of the legislature in enacting it (Church of the Holy Trinity v. U. S., 143 U. S. 457; Buttfield v. Stranahan, 192 U. S. 470; Blake v. National Banks, 23 Wall. 307; Hill's Adm'r. v. Mitchell, 5 Ark. 648; Edger v. Board of Commissioners, 70 Ind. 331; Division of Howard Co., 15 Kan. 154; Fosdick v. Perrysburg, 14 Ohio St. 472). A contemporaneous construction of the terms of a statute by the legislative or executive department is of high value in determining the intention of the legislature (U. S. v. Gilmore, 8 Wall. 330; Philadelphia etc. R. R. Co. v. Catawissa R. R. Co., 53 Pa. St. 20; Wright v. Forrestal, 65 Wis. 341, 348). “By one of the most familiar rules for statutory construction, we may and should reject any meaning that may be attributed to the statutes which would lead to an absurd or unreasonable result. It is often said that the true rule to be observed in a situation like the one before us is to look to the whole and every part of the law, to the intent apparent from the whole, to the subject matter, to the effect and consequences, to the reason and spirit, and thereby ascertain the ruling idea present in the legislative mind at the- time of its enactment, and then, if the manifest purpose of the lawmakers can thereby be reasonably spelled out of the words they used to express it, to give effect to such purpose, though the meaning thus adopted be quite contrary to the literal sense of the words. Ogden v. Glidden, 9 Wis. 46; Harrington v. Smith, 28 Wis. 43; Hartford, v. N. P. R. Co., 91 Wis. 374. When the legislative will, attempted to be expressed in a statute, is worked out in the manner indicated, it is as much a part of the law and as binding on courts as if literally expressed therein. State ex rel. Heiden v. Ryan, 99 Wis. 123; People ex rel. Att'y Gen. v. *574Utica Ins. Co., 15 Johns. 358; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 300” (Wisconsin Industrial School v. Clark County, 103 Wis. 651, 659).

As shown in the majority opinion, it appears that when house bill 74, which after its enactment became Act 84 S. L. 1911, was pending in the legislature, that the judiciary committee in its report on the bill expressly declared that under the provisions of the bill each judge would have the appointment of his own clerks. There is absolutely nothing in the history of the passage of the bill, as shown by the journals of the house and the senate, showing a contrary opinion, and this construction is in absolute harmony with the pre-existing law, with the settled policy of permitting each circuit judge to select his own clerks, and is in line with the rules of construction shown in the authorities hereinbefore cited. This settled policy is a wise and beneficent one. The relations between a judge and the clerks who record and transact the clerical business of the court presided over by him are somewhat of a confidential nature and the utmost respect and confidence should exist on the part of all of them. This settled policy is evidence that the legislature deemed it best, to procure the best service before the circuit courts- in a clerical way, to permit each judge to have the power of appointing and dismissing his own clerks, and this power certainly conduces to the betterment of the service; and I cannot bring my mind to assent to the overturning of this settled policy by the phrases quoted Trom Act 84 S. L. 1911. In my opinion the use of the word “judge” in the plural was for the reason that in one circuit there are three judges while in the others there is only one, and for the purpose of making the language rhetorical and not for the purpose of requiring conjoint or concurrent action by the judges in the first circuit.

It is well perhaps to call attention to another fact, namely, that under the statute as it now exists the provision incorporated into the statute by Act 54 S. L. 1907, to wit, whereby the clerk of the judiciary department had control of the central office in *575Honolulu and all moneys, records and business in tbe central office, was repealed and under tbe present law there is no provision for the outside office, spoken of in the majority opinion, nor has the legislature seen fit, in the statute in question, or in any other statute to which my attention has been called, to prescribe the mode or manner in which circuit judges shall perform their duties except the statute enacted since the controversy herein arose relating to the appointment of court stenographers, and that statute has nothing to do with the solution of any question involved here. The policy of the legislature relating to the appointment of circuit court clerks is to be gathered from the acts relating to the appointment of clerks at the time, and prior to, the appointment of petitioner, and the history of their enactment. Hence, if the rule is established that in the transaction of any of their business, except in the matter of appointing stenographers and interpreters, they must get together and act concurrently, it will be by judicial decision and not by any legislative rule heretofore enacted.

In my opinion the demurrer to the return of the respondent to the alternative writ should be sustained and the reserved question answered in the affirmative.