Maguire v. Tong Wo

• Decision Date: 07 January 1884
• Citation: 5 Haw. 41
• Parties: J. W. MAGUIRE, FIRE MARSHAL, v. TONG WO.
• Court: Hawaii Supreme Court

5 Haw. 41

J. W. MAGUIRE, FIRE MARSHAL, v. TONG WO.

Supreme Court of Kingdom of Hawai'i.

January 7, 1884

SPECIAL TERM, DECEMBER, 1883.

APPEAL FROM POLICE JUSTICE, HONOLULU.

Syllabus by the Court

Where a statute prescribes that a person violating the provisions of such statute, after written notice, shall be liable to a penalty, a printed circular, warning all persons against violations, but not calling attention to any specific breach found to exist, and not directing any specific alterations is not a compliance with the statute.

J. L Kaulukou, for plaintiff.

C. W Ashford, for defendant.

JUDD C. J., MCCULLY and AUSTIN, JJ.

OPINION

MCCULLY J.

THE plaintiff brings action in the Police Court to recover penalty for breach of fire ordinance, under Sec. 338 of the Civil Code.

" SECTION 338. It shall be the duty of the Fire Marshal twice in every year, and as much oftener as he may deem proper, to examine the dwelling houses and other buildings in the respective districts for the purpose of ascertaining any violation of this law; and also to examine the fire places, hearths, chimneys, stoves and stove pipes in the respective districts, and upon finding any of them defective or dangerous, he shall direct the owner or occupants by written notice to alter, remove or amend the same, and in case of neglect so to do, the party offending, on conviction, shall forfeit and pay twenty-five dollars for the benefit of the Fire Department, and for every day of the time allotted for such alteration, removal or amendment, the party so offending shall forfeit and pay the further sum of ten dollars, and the Fire Marshal may make such alteration, removal or amendment at the expense of said owner or occupant."

The Police Justice held that the defendant had not received legal notice, upon the following state of facts:

The plaintiff delivered the defendant a copy of the following circular:

" HONOLULU, October 1, 1873. " SIR-Your attention is respectfully directed to the following Sections of Chapter LXIII of the Penal Code relating to the Fire Regulations of this city.

" The following are a few of the more important points to which you will be expected to give your immediate attention, viz.:

" 1st. To provide yourself with fire buckets, in accordance with Section 348.

" 2d. All openings for stove pipes, whether in side, end or roof of building, must be at least two inches in the clear all around larger than the pipe, this space being closed with a sheet of zinc or iron, through the center of which the pipe shall pass.

" 3d. All stove pipes above referred to must extend at least two and one-half (2 1/2) feet above the building from which they project, or above any wooden building joining thereto, and if the pipe projects horizontally from the end or side of the building, it shall be furnished with an elbow and a perpendicular pipe reaching to the

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