E. Faxon Bishop v. City of Honolulu

• Decision Date: 30 September 1931
• Docket Number: No. 2017.,2017.
• Citation: 32 Haw. 111
• Parties: E. FAXON BISHOP, ALBERT F. JUDD, RICHARD H. TRENT, GEORGE M. COLLINS AND JOHN K. CLARKE, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE P. BISHOP, DECEASED, v. THE CITY AND COUNTY OF HONOLULU.
• Court: Hawaii Supreme Court

32 Haw. 111

E. FAXON BISHOP, ALBERT F. JUDD, RICHARD H. TRENT, GEORGE M. COLLINS AND JOHN K. CLARKE, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE P. BISHOP, DECEASED,

v.THE CITY AND COUNTY OF HONOLULU.

No. 2017.

Supreme Court of the Territory of Hawai‘i.

Submitted September 10, 1931.

Decided September 30, 1931.

MOTION TO DISMISS.

Syllabus by the Court

Section 2546, R. L. 1925, which among other things exempts the Territory and its counties and municipalities from taxation, payment and bond for costs, held not to exempt them from one of the requirements of section 2529, namely, that no writ of error shall issue (except in cases therein named) until “a bond has been filed with the clerk, in favor of the prevailing party in the proceeding in which the error is alleged to have occurred, or his personal representatives, conditioned for the payment of the judgment in the original cause in case of failure to sustain the writ of error;” and neither counties nor municipalities have any implied exemption from the requirement last above named.

Robertson & Castle for the motion.

J. F. Gilliland, City and County Attorney, and L. P. Scott, Deputy City and County Attorney, contra.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PARSONS, J.

Judgment in the court below was for the plaintiffs. Upon application of the defendant writ of error was issued by this court to review the judgment. No bond has been filed by the defendant, the plaintiff in error, conditioned for the payment of the judgment in the event of the failure of the defendant to sustain the writ. Plaintiffs (defendants in error) moved to dismiss the writ on the ground that “no bond conditioned for the payment of the judgment in said cause as required by section 2529 of the Revised Laws of Hawaii, 1925, has been filed herein by the plaintiff in error.” The case is before us upon plaintiffs' motion.

Section 2529 above referred to provides in part as follows: “No writ of error shall issue until the sum of twenty-five dollars has been deposited to cover costs, and * * * a bond has been filed with the clerk, in favor of the prevailing party in the proceeding in which the error is alleged to have occurred, or his personal representatives, conditioned for the payment of the judgment in the original cause in case of failure to sustain the writ of error.” The defendant submits that the motion should be denied upon the following grounds, namely, “first: that under the general rule of law * * * neither the Territory nor the city and county is required to file any bond in this cause; second: that under the terms of section 2546 of the Revised Laws of Hawaii, 1925, the city and county is not required to file any such bond;” and, “third: that there exists no legal authority in the City and County of Honolulu or any of its officers to execute any such bond.”

1. In support of ground number one defendant cites McClay v. City of Lincoln, 49 N. W. (Neb.) 282, 285, which we quote in part as follows: “We take it that the general rule now accepted in the law courts of this country is that the state, and its counties, cities, and municipal corporations, are not subject to the general law requiring appeal-bonds to be given in support of legal controversies, unless required to do so by the terms of a legislative act. The rule is that, in order to bind cities by law like the one under consideration, the city or any branch of the sovereignty shall be specially named, otherwise it is exempt.” To the same effect defendant cites Holmes v. City of Mattoon, 111 Ill. 27, 53 Am. R. 602. No such general rule of law as that invoked by defendant in the paragraph now under consideration and referred to in the two cases last above cited has received judicial recognition in this Territory and the two cases named are not satisfactory authority for its existence elsewhere. In each of the two cited instances the city was expressly exempted from giving an appeal bond--in the Nebraska case by a specific provision in the city charter and in the Illinois case by statute. The question raised in each instance was as to the constitutionality of such exemption. In neither instance was the question now before this court directly involved. Both cases are discussed and the above quoted dictum is criticized in Harrison v. Stebbins, 73 N. W. (Ia.) 1034, 1035, as follows: “In McClay v. City of Lincoln, 49 N. W. 282, the supreme court of Nebraska hold that statutes exempting political corporations from the requirement of giving appeal bonds do not violate the constitutional provision prohibiting special legislation, and Cobb, C. J., in delivering the opinion of the court, remarks: ‘The rule is that, in order to bind cities by law like the one under consideration, the city or any branch of the sovereignty shall be specially named; otherwise it is exempt.’ Then some very good reasons are given for not requiring bonds in such cases. A similar decision will be found in Holmes v. Mattoon, 111 Ill. 28. In so far as these opinions refer to the rule as applied to the state or government, it cannot be doubted, but, as before remarked, our attention has not been called to any authority extending it to counties or municipalities. In many of the states public corporations, and persons acting in a trust capacity, are exempt from giving appeal bonds by the express provisions of the statute; and the tendency of judicial construction has been not to extend these by implication, as they are exceptions to the general policy of the law protecting the appellee. Von Schmidt v. Widber (Cal.), 32 Pac. 532;State v. Judge of Third Dist., 18 La. 444; 1 Enc. Pl. & Prac. 968. The entity of the county is distinct from that of the state, though included in it, and existing for the purpose of carrying out its powers; and while the reasons for exempting the former from giving supersedeas bonds in order to stay proceedings on judgments pending appeal are cogent, and possibly unanswerable, they appeal to the lawmakers for appropriate legislation, rather than to the...