The writing of dissenting opinions is a futile undertaking. In the first place they are not the law and in the second place no one ever reads them. Their only justification is that they are the sole means by which a discordant judge may escape the alternative of subscribing to a pronouncement of the law which does not meet with his approval. They may also serve as "Foot prints, that perhaps another, Sailing o'er life's solemn main, A forlorn and shipwrecked brother, Seeing, shall take heart again."
In dissenting from the conclusions reached by the learned justices whose opinion constitutes the law of this case and determines its destiny I am aware of course that I am likewise out of harmony with a prior decision of the court involving the same question reported in 20 Haw. 325. I refer to Bright v.Fern decided by a divided court in 1910. If the principle of law announced in that case is sound then the instant case is correctly decided. On the other hand if the doctrine laid down in that case is unsound the instant case should have been decided otherwise. In Bright v. Fern the suit was instituted by a certain number of qualified voters for the purpose of contesting an election. In the instant case the suit was instituted by a certain number of citizens and voters for the purpose of impeaching a public official. In each case the jurisdiction of the court was invoked by the filing of a petition and attached to the respondent when process was served upon him. The right of the court to proceed to a hearing and determination of the cause was thus fixed and determined. This is jurisdiction. Can it be defeated by the withdrawal from the suit of such a number of those who have invoked it as to leave those remaining less than the number required to confer it? The decision in Bright v.Fern declares this to be the result and the opinion of the court in the present case reaffirms the doctrine. For *Page 761 several reasons it seems to me that the conclusion is unsound. And these reasons I believe to be strongly buttressed by principle and by precedent.
In the first place voters and citizens acting under statutory authority who set in motion the machinery of the court for the purpose of exposing fraud in the conduct of elections and preventing the incumbency of public office through the suffrage of a corrupted electorate or who invoke judicial aid in removing from official position one who has proven himself unworthy of trust, in a vital sense act in a representative capacity. They petition judicial interference not only in their own behalf but in behalf of an entire constituency whose happiness and security depend on honest government and faithful public service. Having brought public grievances of such a nature to judicial attention they should not be permitted to abandon their undertaking and close the doors to judicial investigation which they themselves have opened. Having espoused a cause in which every citizen has a deep concern they should be held to their course until the matters about which they complain have been fully heard and finally determined. It is too literal to say that the controversy which they originate is a purely private one which they may abandon at their pleasure. When they put themselves forward as the champions of the public interest they invest others with the moral right at least to insist on a judicial ascertainment of the truth or falsity of the charges which they prefer.
The institution of impeachment proceedings against public officials is a serious matter. The institution of proceedings which challenge the honesty of election officers or the integrity of voters is equally a serious matter. It should only be done after mature consideration and full investigation. The time for this is before action is taken and not after. The requisite number of qualified petitioners *Page 762 having put their hand to the plow should not be allowed to turn back. To permit them to do so only invites hasty and ill-considered action in the beginning.
In the second place when the necessary number of petitioners unite in seeking and obtaining the jurisdiction of the court they do so in behalf not only of all the signers of the petition as a unit but in behalf of each one individually. Each one of them becomes entitled to whatever benefits may result from the success of their suit and each one of them becomes liable for whatever expense may be attached to failure. To permit any one or more of them to defeat the jurisdiction of the court by withdrawing thus imposing a financial burden on those who, having more faith in the righteousness of their cause, wish to continue the prosecution would manifestly be unjust. If there be repentant or spineless ones who wish to recant let them do so if they can legally (which I do not concede) but in all conscience and in all fairness do not withhold from those who wish to remain faithful protection by the court, in the exercise of its jurisdiction, of a right conferred on them equally with their cosigners. Why mulct them in costs because of desertions which they are unable to prevent when they might if permitted to proceed prevail in the suit and cast the cost of the litigation on their adversary?
In the third place the jurisdiction of the court is fixed by the status of the parties at the time suit is brought and the respondent served and cannot be ousted by subsequent change in their status. This is the great foundation-stone upon which jurisdiction of courts rests giving stability to something which otherwise would be forever illusive and uncertain. It is the principle which gives to judicial authority its permanence and its dignity. If this were not the law the jurisdiction of courts would be a portable sort of thing to be picked up or laid aside or carried *Page 763 about at the whim of every capricious litigant who has sought its aid. So far as I know this cardinal rule was first declared in this country by Chief Justice Marshall in the case of Mollan v.Torrance, 9 Wheat. 537. With a very few singular exceptions it has been the law ever since. It has been applied in various circumstances and always with the result that whatever changes may take place in the status or condition of the parties to a suit jurisdiction having once attached remains. It has been applied with such convincing logic to circumstances so similar to those that existed in Bright v. Fern and that exist in the present case that to deny its applicability would be a mere quibble. So much for the principles upon which my dissent is based. They are fully supported by judicial precedent. McCrary on Elections (4 ed.) at section 454 expresses the very wholesome and rational view that "A contested election case, whatever the form of the proceeding may be, is in its essence a proceeding in which the people — the constituency — are primarily and principally interested. It is not a suit for the adjudication and settlement of private rights simply. It follows that the parties to the record can not, by stipulation or otherwise, discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor should such consent ever be given, unless the court giving it is sufficiently advised to be able to say that it is for the interest of the public to do so." Miller v. Maier, 136 Minn. 231 (2 A.L.R. 399), was a case involving an election contest. The proceedings were instituted by the requisite number of qualified voters. Before the trial three of the petitioners sought to withdraw from the contest. In denying their right to do so the supreme court of Minnesota said: "On April 5, three of the electors who had signed and sworn to the petition made application to the court, through the attorneys for *Page 764 contestee, for leave to withdraw from the petition upon the ground that they did not, at the time of signing the same, fully understand the contents thereof. This application was properly denied by the court. Contests of this character based upon a statutory petition, signed and sworn to by a large number of electors for the purpose of setting a contest in motion, constitute the beginning of a very important litigation, in which the public has a deep interest, and men should not lightly be permitted to stultify themselves by saying that they did not know what they were doing when they signed an instrument of that gravity. In re Grim, 14 Wkly. Notes Cas. (Pa.) 303. The proceeding was in no legal sense under the control of the contestants, after the court had taken action therein by calling a special term of court. The filing and serving of the petition, together with the notice, conferred upon the court power to act in the premises, and, after jurisdiction is thus conferred and the court has acted thereon, the jurisdiction cannot be defeated by any number of such petitioners subsequently withdrawing from the petition." Irmegar et al. v. Tazewell County, an Illinois case reported in 106 N.E. at page 227, was also a contested election case. The statute required that a petition contesting an election should be signed by not less than five electors. The petition in the case before the court was originally signed by eleven electors. Subsequently they all withdrew except four. Upon motion of the defendant the trial court dismissed the petition on the ground that it no longer had jurisdiction to proceed. The supreme court reversing the lower court said: "When such election contests are brought in court, as required under the statute, the rules as to jurisdiction must necessarily be the same as in other judicial proceedings, unless the statute on election contests, from its wording, should be construed otherwise. The general rule is that the jurisdiction of a court over a *Page 765 cause depends on the state of facts at the time the action is brought; that, after jurisdiction has once vested, it cannot be divested by subsequent events. Change of residence or of the condition of the parties or of the amount in dispute cannot take away jurisdiction that has once attached." (Several cases cited.) "Under these authorities jurisdiction attached as soon as this petition was filed. Nothing is found in the wording of the statute on election contests that indicates in any way that the question of jurisdiction in such court proceedings should be treated differently from the question of jurisdiction in any other cause. Obviously, therefore, jurisdiction having vested, it was not divested by the withdrawal of certain of the petitioners, unless, under the statute, they had the right to control and dismiss the petition. A part of the complainants, if this were an ordinary lawsuit, would have no authority to dismiss this proceeding so as to oust the court from jurisdiction to try the same on behalf of the other complainants. After suit brought part of the plaintiffs cannot be permitted to withdraw, if by so doing the remaining plaintiffs in the suit are injured. Holkirk v.Holkirk, 4 Madd. 50; Jeffcoat v. Jeffcoat, 3 L.J. Ch. (O.S.) 45. This court has held that one of two plaintiffs has no right to dismiss the action against the objections of the other, even though the person desiring to dismiss is liable to be injured by the further prosecution, provided his coplaintiff shall indemnify him against the loss. Winslow v. Newlan,45 Ill. 145. See, also, Andrews' Stephen's Pl. (2d Ed.) § 31. If the argument of counsel for appellee is sound, then why should not death, insanity, conviction of felony, or removal from the election district of any one of the petitioners after the filing of the petition operate, in and of itself, as a dismissal of the petition, and thus oust the court of its jurisdiction?" Beebe etal. v. Wilkins is a New Hampshire case reported *Page 766 in 29 A. 693. It was a suit brought under a statute allowing not less than twenty legal voters to file a petition in the supreme court for the abatement of certain nuisances. Twenty-two legal voters filed a petition against the defendant Wilkins praying the abatement of a liquor saloon. After filing their petition three of the petitioners were allowed to withdraw their names, thus reducing the number remaining to less than twenty. Thereupon the defendant moved that the case be dismissed. In denying the motion the supreme court of New Hampshire said: "Under this statute, the filing of a petition for the abatement of a liquor nuisance, signed by 22 legal voters, gave the court jurisdiction of the subject-matter, and by due notice jurisdiction of the person of the defendant was acquired. The statute remaining in force, the jurisdiction thus obtained extends to the final judgment in the cause, and cannot be taken away by any change in the residence or condition of the petitioners. An information filed by the solicitor, or a petition signed by not less 20 legal voters, is necessary to give jurisdiction under the statute, as a complaint, information, or indictment is essential to jurisdiction in criminal cases; and a petitioner's voluntary withdrawal, death, or ceasing to be a legal voter affects the jurisdiction no more than the death of a complainant or prosecuting officer by whom an information was filed, or the decease or removal from the jurisdiction of a member of the grand jury by whom an indictment was found affects the jurisdiction of the court in a criminal proceeding. In such cases the state is the real plaintiff, although, in some instances, a complainant or petitioner may be liable for costs. In the administration of municipal affairs, instances are numerous where jurisdiction is given by statute to tribunals to act upon petition of a certain number of legal voters. In such cases, jurisdiction once acquired is not lost by the reduction *Page 767 of the number of petitioners below the statutory limit by death or removal pending the action of the tribunal. If the petitioners are regarded as parties, the jurisdiction is determined by the state of facts existing at the time of filing the petition. When jurisdiction has attached, it is not defeated by subsequent acts of the parties. Jurisdiction of the subject-matter and of the parties, once obtained, is not lost by the removal of one or all of the parties out of the territorial jurisdiction. When it depends upon residence of the parties, or upon the amount in controversy, a change of residence or a reduction of the amount by confession or otherwise does not oust the court of jurisdiction once acquired."
It is sought in the majority opinion to distinguish the instant case from the New Hampshire case by saying that the latter was criminal in its nature while the instant case is entirely civil in its nature. This distinction does not seem to me sound. In the first place the New Hampshire case was no more a criminal case than is the instant case. One was brought for the purpose of suppressing a liquor saloon that had become a public nuisance and the other was brought for the purpose of removing a public official who had become a public menace. They were both instituted by private individuals for the public benefit and they are both penal in their nature. When the court in the New Hampshire case said the state was the real party in interest it simply meant that the people who compose the state, in other words the public, had a beneficial interest in the suit. This is equally true of the instant case. The Territory not as a governmental entity but as a people constituting a governmental entity is the real party in interest. In the second place the decision of the New Hampshire court was not predicated on the fact that the proceeding was criminal in its nature nor that the state was the real party in interest but on the fundamental *Page 768 ground that the court having acquired jurisdiction would hold it notwithstanding the withdrawal of some of the petitioners. In that regard it is in harmony with most of the other appellate courts in this country.
It is said in the majority opinion that our impeachment statute not only requires the institution of proceedings by not less than twenty-five voters and citizens but it also requires that the entire twenty-five shall continue the prosecution of the suit. Of course there is no such direct requirement in the statute. If it is there at all it is entirely inferential. It seems to me a strained construction to deduce such a requirement, as is done in the majority opinion, from the expression that "after default the court may hear the petitioners upon their proof." By the same reasoning it would follow that because the court is vested with power to "hear the petitioners upon their proof" after default all the petitioners must appear and offer proof and that no lesser number than all of them could offer proof of the truth of their charges. If this latter construction should be placed on the statute and one of the twenty-five petitioners should become insane or leave the country or otherwise become unable to appear the remaining twenty-four would be rendered impotent and the case would reach an impasse. If the entire twenty-five are not required to offer proof in the event the respondent is defaulted upon what hypothesis can it be argued that the entire twenty-five must adhere to the petition in order to preserve the jurisdiction of the court? The evident purpose of the statute in requiring the petition to be signed by not less than twenty-five voters and citizens was to confer jurisdiction upon the court to judicially hear and determine whether the official whose conduct is questioned should be impeached and removed from office. The jurisdiction of the court having attached the general rules governing its permanency are to be applied. *Page 769
It is suggested in the majority opinion that the legislature has placed its imprimatur on the decision in the Bright v.Fern case by not subsequently amending the statute. This is the only instance I have ever known where the inaction of the legislature was considered an approval of a judicial decision. Every lawyer of course is familiar with the principle that when a statute has been judicially construed and is afterward reenacted the construction placed on it becomes a part of the statute. It is quite different however to conclude that because a statute has been erroneously construed the failure of the legislature to amend it estops the court from correcting its own error. It would be just as logical to hold that if the Supreme Court of the United States misconstrued a clause of the Federal Constitution and Congress thereafter did not offer an amendment correcting the error such inaction would be equivalent to a legislative affirmance of the decision of the court and the error must therefore remain incurable. Such a conclusion shifts a responsibility which belongs to the judicial department of the government to the legislative department.
My preference is that the supreme court of Hawaii should put itself in accord with other jurisdictions on this very important question.
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