19 Haw. 171 | Haw. | 1908
OPINION OP THE COURT BY
The petitioner, as a citizen of the United States and the Territory, and of the County of Oahu, a taxpayer and. elector in the Territory and County, filpd a petition before the circuit judge for a writ of mandamus directed to the board of supervisors of the County of Oahu commanding them forthwith to proceed and issue a proclamation concerning a county election for the County of Oahu, and to transmit copies of the same to the several boards of inspectors throughout the County of Oahu and to cause the proclamation to be posted in the manner required by law and to do all acts and things required of them under and by
The defendants demurred to the petition on the ground that it does not state facts sufficient to entitle the petitioner to a writ of mandamus as prayed for or to any relief whatsoever.
The circuit Judge reserved for the consideration of this court the following questions arising under the petition and demurrer, for that purpose reporting the same to this court, namely:
1. Does the petition for a writ of mandamus as filed in said proceeding state facts sufficient °to entitle the petitioner John Emmelutli to a writ of mandamus as prayed for, or to any relief whatsoever?
'2. Idas the Act of the Legislature of the Territory of Hawaii, entitled “An Act creating Counties within the Territory of Hawaii and providing a government for the same” been and now is repealed by an Act of the Legislature of the Territory of Hawaii, entitled “An Act Incorporating the City and County of Honolulu” approved April 30th, A. D. 1907, and is the said act entitled “An Act Creating Counties within the Territory of Hawaii and providing a Government for the same” void and of no effect and not binding upon the said respondents in any manner or form?
3. Is the said Act of the Legislature of the Territory of Hawaii, entitled “An Act Incorporating the City and County of Honolulu” approved April 30th, A. D. 1907, unconstitutional and void and of no effect, the same being in conflict with and opposition to an Act of Congress of the United States of America, entitled “An Act to Provide a Government for the Territory of Hawaii,” inasmuch as it is
(1) An attempt on the part of the Legislature of the Territory of Hawaii to grant to a corporation special and exclusive privileges and immunities without the approval of Congress.
(2) That it requires other and different qualifications for the electors under said Act than are prescribed and provided for
4. Is the said Act unconstitutional in that there are numerous private agricultural corporations embraced within the boundaries of said municipal corporation, not subject to control on the part of the Territory, except in the exercise of the police power, their charters being contracts within the meaning of the contract clause of the federal constitution which the States and Territories are prohibited from impairing ?
5. Is the said Act void for inasmuch as,
(1) That municipal taxes may be imposed on lands strictly rural in character and therefore not capable of receiving the benefits or advantages usually derived from municipal organizations ?
(2) That the boundaries of said Municipal Corporation sought to be established by said Act are inaccurate, indefinite and uncertain.
6. Should the Writ of Mandamus be issued as prayed for ?
The demurrer does not specifically set up, the defendants say it was not intended to set up, the plaintiff’s incapacity to bring the suit. If the objection had been raised he might have amended by averring an impending unauthorized expenditure of public money, thus bringing his case within the rule in Castle v. Secretary of the Territory, 16 Haw. 769, 774. We are not inclined to hold that a private citizen who does not claim that his property rights are in danger of being injuriously affected can obtain an adjudication that a statute is unconstitutional, since as far as political questions are concerned he does not represent the public as in case of unauthorized expenditures. Our cases have not gone to that extent, and we are not disposed to extend their authority. See Territory v. Miguel, 18 Haw. 402, 404, in which it was held that one whose rights were not affected by portions of a law regulating sales of intoxicating liquor claimed by him
Another question not raised by the pleadings but argued by counsel who by consent of court appeared against the petition, is whether the Territory ought to have been made a party in order that the attorney general should represent the interests of the public. The statute, Sec. 2104 R. L., prescribes that the writ “may be directed to public officers to compel them to fulfil any of the duties attached to their office or which may be legally required of them.” The county attorney, who appeared for the supervisors, is “a deputy of the attorney general of the Territory” (Sec. 95 County Act), as well as “legal adviser of the board of supervisors” (Sec. 93, lb.) There is ño reason why the attorney general should not have been heard without the formality of making the Territory a party.
It is further claimed by the counsel that the petition is premature, since for all that appears the defendants may yet proceed under the County Act. It is true that they would be^ at liberty to change their purpose, they might be advised to do so. Mandamus, it is said, “is never granted in anticipation of an omission of duty, but only after an actual default.” Ex parte Cutling, 94 U. S. 20. There is no occasion, however, to rule upon this objection or to say whether a refusal made in advance of the time for performing the alleged duty rvould be a waiver of the objection.
The principal question in the case, although not expressly reserved, is whether the act of July 30,1886, ch. 818, 24 Stat. at Large 170, is in this case applicable to Hawaii in declaring “that the legislatures of the territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases, that is to say,” specifying after numerous other instances, such as granting divorces,
Our Organic Act, Sec. 55, also provides that “the legislature shall not grant to any corporation, 'association or individual any special or exclusive privilege, immunity or franchise without the approval of Congress nor shall it grant private charters, but it may by a general act permit persons to associate themselves together as bodies corporate.” Section 1889, U. S. New Stats., enacts that “legislative assemblies of the several territories shall not grant private charters or special privileges, bnt they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate.” Congress has declared that these words in Sec. 1889 “shall not be construed as prohibiting the legislative assemblies of the several territories of the United States from creating towns, cities or other municipal corporations, and providing for the government of the same and conferring upon them the corporate powers and privileges necessary to their local administration by either general or special acts.” Act June 8, 1878, ch. 168, 20 Stat. at Large 101.
The provision above cited from Sec. 55, Organic Act, refers' to corporations other than county, town and city municipalities which the act, Sec. 56. expressly authorized the legislature.to create. The authority for creating such municipalities is not limited by requiring that they shall not be created by. special
It is admitted that the Act incorporating the City and County of Honolulu requires other and different qualifications for electors than are prescribed in the Organic Act. Section 60 of the Organic Act provides that in order to be qualified to vote for representatives a person shall prior to each regular election, during the time prescribed by law for registration, have caused his name to be entered on the register of voters for representa1ives for his district, and Section 62 provides that in order to be qualified to vote for senators, and for voting in cdl^other elections in the Territory of Hawaii, a person must possess all the qualifications and be subject to all the conditions required of voters for representatives. By Section 64 of the Organic Act, the rules and regulations for administering oaths and holding elections set forth in Ballou’s compilation, civil laws, appendix, and the list of registering districts and precincts appended, are continued in force with certain designated changes. Section 38, R. L., provides that the boards of registration shall meet within their respective districts at such times between the last day of August and the 10th day of October in the year 1906, and between such days in each second year thereafter, as many times as may be necessary to enable them to register all persons entitled to register, and Section 30, R. L., provides that at any intermediate special election the register of voters at the last preceding general election shall be used without change.
Sections 42 and 70 of the Act incorporating the City and County of Honolulu are in conflict with the provisions of the
There is no merit in the petitioner’s - claim that the act is void because it impairs contract obligations of private corporations or because it authorizes taxation of rural lands incapable of receiving the usual benefits of municipal organizations, or because the boundaries of the municipal organizations are inaccurate, indefinite or uncertain.
The circuit judge is advised that upon the foregoing considerations the defendants’ demurrer ought to be sustained and the plaintiff’s petition dismissed.