25 Haw. 669 | Haw. | 1920
OPINION OF THE COURT BY
Proceedings in quo warranto were instituted in the circuit court by Ben Hollinger to oust the respondents Jonah Kumalae and Manuel C. Pacheco from the office of supervisor of the City and County of Honolulu. Separate proceedings were instituted against each respondent but since the title of each is challenged upon the same grounds both causes were considered together in the circuit court and have by stipulation of parties with the approval of this court been briefed and argued together in this court and will be disposed of in one opinion. So much of the agreed statement of facts in the Kumalae case as is necessary to an understanding of the discussion follows:
“That Jonah Kumalae, respondent above named, was duly elected a member of the house of representatives of the Territory of Hawaii from the fifth representative district on the 5th day of November, 1918, to serve for a period of two years, and duly qualified and took part as a member of said house in the regular session held in Honolulu from February 19, 1919, to April 80, 1919.
“That on the 3rd day. of June, 1919, and while still a member of the said house of representatives, said respondent Jonah Kumalae. was elected a supervisor of the City and County of Honolulu, to serve for a period of four and a half years from the 1st day of July, 1919, and on said 1st day of July, 1919, undertook and entered upon the duties of said supervisor and has been acting as a supervisor of said City and County since said date.
“That since such election as such supervisor there has been no session of the legislature of the Territory of*671 Hawaii, said respondent has not acted as a member of the house of representatives of the Territory of Hawaii, and does not now claim the position of a member of the house of representatives of the Territory of Hawaii.”
In the Pacheco case the agreed facts are the same except it is there agreed that he was duly elected a member of the senate of the. Territory of Hawaii from the third senatorial district on the 7th day of November, 1916, to serve for a period of four years, and duly qualified and took part as a member of said senate in the regular session held in Honolulu from February 21, 1917, to May 2, 1917, and the special session thereof held in Honolulu from May 14, 1918, to May 31, 1918, and the regular session thereof held from February 19, 1919, to April 30, 1919.
The circuit judge at the request of parties reserved to this court in the Kumalae case the following question:
“Was respondent, on the 3rd day of June, 1919, disqualified for election as a member of the board of supervisors of the City and County of Honolulu by reason of his being a member of the House of Representatives of the Territory of Hawaii?”
In the Pacheco case the same question was reserved with the exception that the word “senate” is substituted for the words “house of representatives.”
An answer to the questions reserved requires a consideration of section 16 of the Organic Act of the Territory of Hawaii which reads as follows:
“That no member of the legislature shall, during the term for which he is elected, be appointed or elected to any office of the Territory of Hawaii.”
It must be apparent that the question of primary importance for us to determine is whether the office of supervisor of the City and County of Honolulu is an “office of
. Many cases have arisen upon constitutional or. statutory provisions employing language somewhat similar to that used in our Organic Act above quoted but we have found none which deals with exactly the language here employed. The nearest approach to the phrase “office of the Territory of Hawaii,” used in section 16, to which our attention has been directed, is the phrase “officer of the commonwealth,” used in the constitution' of Massachusetts, providing that “the senate shall be a court with full authority to hear and determine all impeachments made by the house of representatives against any officer or officers of the commonwealth.” And it was there held that the various officers of cities and towns are not officers of the commonwealth in the sense in which that term is used in the constitution. Opinion of the Justices, 167 Mass. 599, 46 N. E. 118. Of course one to be an “officer of the commonwealth” would have to hold an “office of the commonwealth.” So the holding is in effect that the various city and town offices are not “offices of the commonwealth.” Another near approach to the language used in the Organic Act is found in a Texas statute con
In Britton v Steber, 62 Mo. 370, the opinion turned on the question of the finality of the decision of the appellate court of St. Louis County in a case involving the title to the office of mayor. The supreme court of Missouri has appellate jurisdiction to review the decisions of the appellate court where the title to an office “under the State” is brought in contest. The jurisdiction of the supreme court was invoked to review the decision of the appellate court of St. Louis County in a case involving the title to the office of mayor. In refusing to assume jurisdiction the court said: “There is a recognized distinction between state officers Avhose duties concern the state at large or the general public, although exercised within defined territorial limits, and municipal officers whose functions relate exclusively to the particular municipality. (Dillon Mun. Corp. Sec. 33.) A state officer may be connected with some of the municipal functions but he must derive his power from a state statute and execute his power in obedience to a state law. (State v. Valle, 41 Mo. 29.) Whilst it is true that the state grants the charter under which a city is organized and acts yet those elected in obedience to that charter perform strictly municipal functions and do not act in obedience to state laws in the manner enjoined upon such officers.” In Waldo v. Wallace, 12 Ind. 569, it is held to be the settled law of that state that the mayor of a city when acting as such is not
In State ex rel Platt v. Kirk, 44 Ind. 401, the respondent Kirk who held the office of prison director was elected councilman of the city of Madison and qualified and entered upon the discharge of the duties thereof. The general .assembly thereupon elected the relator Platt to the position of prison director which it considered the respondent Kirk had vacated by accepting the office of councilman, the state constitution providing “nor shall any person hold more than one lucrative office at the same time.” Kirk refused to vacate the office of prison director and the state on the relation- of Platt brought proceedings by quo warranto against him to inquire by what right he held that office. The court having held that the clause of the constitution above quoted applied only to lucrative state offices necessarily inquired into the character of the office of councilman; that is, whether it was a state office or otherwise, and upon this question the court held that the office of councilman in a city is an
In Santo v. Iowa, 2 Ia. 164, 220, no such language as we are considering was involved but the decision is nevertheless instructive. The Iowa statute conferred upon the mayor of the City of Keokuk the jurisdiction of a justice of the peace under the criminal laws of the state and made him a justice of the peace in substance although not» calling him such in terms. The defendants having been convicted of a criminal offense in the trial before the mayor, acting in his capacity as justice of the peace, on appeal raised the question of the legal authority of the mayor to entertain the cause and challenged the constitutionality of the statute Avhich conferred jurisdiction on the mayor. The objection Avas that the mayor is an executive officer and that judicial authority is conferred upon him in conflict Avith that provision of the constitution which says that no person charged with the exercise' of power properly belonging to one of these departments —-the executive, legislative or judicial — shall exercise any functions appertaining to either of the others. The court held hoAvever that the departments referred to in the constitution were the departments of the state government of the state of IoAva and that whatever executive
In Attorney General ex rel Wilkins v. Connors, 9 So. 7, it appears that the relator Wilkins was elected sheriff of Escambia County, Florida, in which is situated the city of Pensacola. At the time of his election the statute of that state provided that “it shall be the duty of the' sheriff of the county in which such city shall be situated to perform the duties of marshal for such provisional municipality, and to appoint subject to the approval and removal by the board such number of policemen as may be authorized by the board.” It further appeared that notwithstanding said provision the respondent had assumed to be, and exercised the powers and duties of, the chief of police force of said provisional municipality and as such exercised powers and duties which appertain to the office of marshal. It was contended for the respondent that the statute above quoted is obnoxious to that provision of the state constitution which provides that “No person shall hold or perform the functions of more than one office under the government of this state at the same time.” And in this connection it was urged for the respondent that the city marshal is a state officer in the sense of the constitutional provision invoked and that to put the performance of the duties - appertaining to his office upon a sheriff of a county (another state officer) comes within the constitutional inhibition above quoted. The supreme court of Florida, however, held that this inhibition was aimed solely and entirely against offices held under, or whose duties appertained to, the government of the state, and although hold
Other cases of like import could be cited but we do not consider it necessary to do so.
We will now notice the cases relied upon by the peti
In California it is held that the office of school superintendent of a county and the office of supervisor of a county come within the meaning of the phrase “civil office of profit under this State,” used in the article of the state constitution which provides that “No person holding any lucrative office under the United States or any other power shall he eligible to any civil office of profit under this State” (Crawford v. Dunbar, 52 Cal. 36; People v. Leonard, 73 Cal. 230), but in neither case is there any pretense of a discussion of the question here involved. In fact the question does not appear to have been raised and the court apparently assumed, rather than held, that they were offices “under the State.” It is also held in Satterwhite v. Garrison, 34 Cal. App. 734, that a deputy district attorney is the holder of an “office, trust or employment under this State,” though generally known as a county officer, under a constitutional provision providing that no member of the legislature shall during the term for which he shall have been elected hold or accept any office, trust or employment under the State. This was held on the authority of the two California cases above cited and the court added: “We think these cases are not overruled by Nicholl v. Koster, 157 Cal. 416 (108 Pac. 302), which holds that probation officers are not ‘officers of the state government,’ the term ‘officers of the state government’ being evidently much more restricted and of narrower import than the clause of the constitution now under consideration.”
In Pennsylvania it is held that the holding of the office of postmaster and county commissioner by one person at the same time is prohibited by the constitution of the state by the provision that “No member of Congress from this State nor any person holding or exercising any office
In State v. Moores, 52 Neb. 770, it was held that the office of mayor of a metropolitan city in that state is an “office under the state.” The following quotation from page 779 of the opinion in this case will suffice to show the holding of the court and the reasons therefor: “But the contention of respondent, if we correctly understand his counsel, is that the constitutional provision invoked by relator embraces merely state officers or ‘offices under the state.’ To so construe the fundamental law is to ignore not only the grammatical construction of the language used by the framers, but as well the plain and ordinary signification of the words. The duties of such officer are not merely municipal, but the law creating the position has imposed upon him many duties and functions which pertain to state affairs, and the enforcement of the general laws of the commonwealth, many instances of which are pointed out on page 10 of relator’s brief, such as the mayor is made conservator of the peace, has the power to issue a posse comitatus, to order the suppression of riots and breaches of the peace, to remit fines and costs imposed by the police judge for offenses arising under the laws of the state, and, in cases of urgency or
In Truitt v. Collins, 122 Md. 526, it is held that the holding of the office of supervisor of elections and the office of town councilman by one person at the same time is prohibited by article 55 of the. declaration of rights which declares: “That no person shall hold at the same time more than one office of profit created by the constitution and laws of this State,” etc. In that, case it was contended that the position of town councilman is not an “office” within the meaning and intent of the above quoted article of the declaration of rights, but the court held that because the incumbent is required before entering upon his duties to take an oath of office the position is an “office,” and further held that because the duties and the nature .and extent of the powers of such councilman are conferred by law such office of councilman is an “office of profit” within the meaning of the article of the declaration of rights above quoted — that is, an “office of profit created by the constitution and laws of this State.” Again we may say that the constitutional provision under consideration in that case is so utterly unlike the provision here under consideration as to render the decision without value to us. The Maryland case' does not decide anything except that the office of councilman is an “office” and that it is “created” under the constitution and laws of the state.
Probably the best considered opinion relied upon by the petitioner is that in Attorney General v. Detroit Common Council, 112 Mich. 145. The constitution of Michigan provides that “No member of Congress nor any person holding office under the United States or this State
Does the office of supervisor of the City and County of Honolulu come within this principle? The answer must be found in an examination of the charter of the City and County wherein the powers and duties of the supervisors are defined. Section 1654 R. L. 1915 and the various amendments thereof, consisting- of twenty-seven separate paragraphs, contain the legislative grant of powers to, and the imposition of duties upon, the supervisors, and from a careful reading of this section as well as other sections of the charter we fail to find, where they are vested with any powers of a general territorial nature or are given any territorial duties to perform. On the contrary it appears to us that every official act of the supervisors is of purely local application. They are’ charged with no such duties as those found by the Michigan case or the other cases reviewed to be state duties. Hence the basis of these decisions is lacking in this case. Then too, there is a marked difference between the term “office under the state” contained in the Michigan constitution, and the term “office of the Territory” contained in section 16 of our Organic Act. The term “office under the State” is a much more comprehensive term than “office of the Territory” and one might well be held to come within the description holding an office “under the State” and at the same time be held not to come within the
It must he apparent that the cases cited are not necessarily conclusive of the question before us which involves language somewhat different from the language construed by the various courts in these cases though we think that on the authority of the adjudicated cases alone we would be compelled to hold that the office of supervisor of the City and County of Honolulu is not an “office of the Territory of Hawaii.”
It will be noted that not all of the cases considered were dealing with the question of eligibility to be elected to or hold an office but we think that none of them dealt .with a constitutional or statutory provision which would require a stricter construction than the act involved in this case. It is a general rule that language used in a statute or constitution must be presumed to have been used in its known and ordinary significance unless that sense he repelled- by the context. Levy v. McCartee, 31 U. S. 102, 110. Another well recognized rule is that statutes providing for disqualification of citizens for election to office are construed strictly and will not be extended' to cases not clearly within their scope. 29 Cyc. 1380.
Unquestionably in its known and ordinary significance the phrase “office of the Territory of Hawaii” does not include offices purely local or municipal, but includes only such offices as were created for the purpose of carrying on the business of the territorial government. Unless, therefore, there is something in the context showing that Congress intended a different meaning we must hold that it intended the words used to be accepted in their known and ordinary significance. By the context is meant not only the sentence or section in which the words occur but
Neither do we find any merit in petitioner’s argument that because the general laws of Congress (Sec. 1854 U. S. R. S.), applicable to all territories then in existence,
We think it is clear that Congress did not intend by section 16 to prescribe who.should not be appointed or elected to any office purely municipal but by section 56 of the Organic Act left that to the territorial legislature. The territorial legislature evidently took that view of it and has by section 1667 R. L. 1915 prescribed what qualifications will make one eligible to fill any elective office created by the municipal charter of the City and County of Honolulu and have prescribed different qualifications from those required of officers of the Territory by the Organic Act, notably the provision to the effect that one must have been a duly qualified elector of the Territory and City and County for at least two years, while a member of the senate or house of representatives must have resided for at least three years in the Territory and be qualified to vote for representative in his district.
Section 1668 R. L. 1915 provides that “No person shall hold more than one office at the same time except as herein provided” and petitioner’s counsel contend that this section is violated and respondents cannot hold the office of supervisor. In this contention they overlook entirely the rule that by the acceptance of the second office (that of supervisor) the first (that of legislator) was automatically vacated providing the holding of the two offices by one person at the same time has been forbidden by law or the two offices are incompatible at common law. Howard v. Harrington, 114 Me. 443, 96 Atl. 769; 1917A L. R. A. 211 and note p. 225. The only exception to this rule is where the two offices held are under different governments, in which case inasmuch as the second government has no power to declare the office held under the first government vacant and is powerless to prevent the officer from exercising the office first held, it must content itself with refusing to permit him to have the office it does control. This has been applied in cases where one office was under a state government and the other under the Federal government.
It is likewise true that if the law does not forbid the holding of the two particular offices by one person at the same time for the reason that one is municipal and the other territorial and they are not incompatible at common law respondents could legally hold them both at the same time. But we are not left to a determination of the scope of section 1668 R. L. to ascertain that respondents are prohibited by law from holding the office of senator and representative while holding the office of supervisor, for section 17 of the Organic Act prohibits any person hold
Applying the rule above announced we conclude that the acceptance by respondents of the office of supervisor automatically vacated the office of senator and representative respectively then held by them. There has therefore been no holding of two offices by one person at the same time.
And Anally in answer to the argument of counsel for petitioner that this court ought to so construe the law as to bring this cause within its terms because it is against public policy for a member of the legislature after having taken part in the enactment of a law increasing the salary of an office and lengthening the term thereof to be eligible for election to that office during the term for which he was elected to serve in the legislature we have only to say that the way is open for the territorial legislature by an appropriate act to apply the remedy'if in its opinion the practice is against public policy. But we as a court have no inclination to usurp the functions of the legislature, the duties imposed upon us as a court being quite as much as we are willing to assume.
Our conclusion is that the reserved questions should be and they are answered in the negative.