William S. RICHARDSON, Henry H. Peters, Oswald K. Stender, Myron B. Thompson, and Matsuo Takabuki, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, a Hawai‘i municipal corporation, Defendant-Appellee, and Hale Coalition, Intervenor-Appellee.
No. 16457.
Supreme Court of Hawai‘i.
Feb. 18, 1994.
Reconsideration Denied March 7, 1994.
868 P.2d 1193
Lex R. Smith (Bert T. Kobayashi, Jr. of Kobayashi, Sugita & Goda and Thomas P. Rack, Deputy Corporation Counsel, with him on the briefs), Honolulu, for defendant-appellee City and County of Honolulu.
Dennis E.W. O‘Connor (Jerrold K. Guben, with him on the briefs; of Reinwald, O‘Connor, Marrack, Hoskins & Playdon), Honolulu, for intervenor-appellee.
James K. Mee, Wayne P. Nasser and Teresa A. Quon of Ashford & Wriston, on the briefs, Honolulu, for amicus curiae Small Landowners of Oahu.
Carolee M. Aoki, A. Sonia Faust, Stanley H.C. Young and Joslyn V. Wood, Deputy Attorneys General, on the briefs, Honolulu, for amicus curiae State of Hawai‘i.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.*
* Circuit Court Judge Heely, who was assigned by reason of vacancy to sit with the justices of the supreme court pursuant to
LEVINSON, Justice.
The United States District Court for the District of Hawai‘i has certified a question of state law to this court. See
The plaintiffs-appellants William S. Richardson, Henry H. Peters, Oswald K. Stender, Myron B. Thompson, and Matsuo Takabuki (the Trustees), in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate, urge that the question be answered in the affirmative. The defendant-appellee City and County of Honolulu (the City) and the intervenor-appellee HALE Coalition (the Coalition) urge a negative answer. For the reasons discussed below, we answer the question in the negative and rule that Ordinance 91-95 is not preempted by state law.
I. BACKGROUND
On December 4, 1991, the Honolulu City Council enacted Bills 156 (1990) and 36 (1991), which became effective on December 18, 1991, as Ordinances 91-95 and 91-96, respectively. Ordinance 91-95 provides for the condemnation of a lessor‘s leased fee interest in leasehold condominium developments,3 cooperative housing corporation de-
velopments,4
dential planned development leaseholds), and 5 (eminent domain) (Apr. 1992 Rev.). Ordinance 91-966 imposes a ceiling on renegotiated lease rents for ground leases of owner-occupied residential “apartments”7 in the City and County of Honolulu. See Honolulu, Haw., Rev. Ordinances §§ 39-1.5 (maximum annual renegotiated lease rent), 39–1.6 (biennial adjustment of renegotiated lease rent), and 39-1.7 (administrative adjustment of an-
In response to the enactment of these two ordinances, the Trustees, on December 18, 1991, filed a complaint (No. 91-00725 DAE) against the City in the United States District Court for the District of Hawai‘i (the federal court), challenging the validity of Ordinances 91-95 and 91-96. The Coalition, a group representing the interests of lessees, was granted leave to intervene as a defendant on April 1, 1992.
The Trustees’ complaint advances thirteen claims for relief. Count XIII, at issue in the instant case, alleges, inter alia, that: (1) Ordinance 91-95 is preempted by
On February 14, 1992, the Trustees filed a motion for partial summary judgment as to Counts I through IV, VI, VII, XII, and XIII. On June 8, 1992, the Coalition filed a motion for summary judgment as to the remaining counts of the complaint. On June 9, 1992, the City filed a cross motion for summary judgment on all counts.8
On September 16, 1992, the federal court entered an order resolving the claims for relief contained in Counts I through XII of the Trustees’ complaint. 802 F.Supp. 326. Specifically, the federal court‘s order granted the Trustees’ motion for partial summary judgment with respect to all counts relating to Ordinance 91-96 and declared the ordinance unconstitutional. However, the federal court found Ordinance 91-95 “to be in compliance with the relevant provisions and
standards of the United States Constitution and the
Although it upheld the constitutionality of Ordinance 91-95, the federal court‘s order did not resolve Count XIII of the Trustees’ complaint. Rather, “[u]pon careful review of the relevant state law and the underlying policy implications involved,” the federal court found “that the purely state law preemption issue would be best answered in the first instance by the Hawai[‘]i Supreme Court.” Therefore, the federal court certified the question to this court pursuant to
II. CERTIFIED QUESTION
According to Hawai‘i state law, is Ordinance 91-95 preempted by
III. DISCUSSION
A. The City Possesses The Authority To Enact Ordinance 91-95.
The Trustees devote considerable energy to the contention that “[t]he state legislature never delegated to the City the authority necessary for it to enact an involuntary fee conversion ordinance.” Trustees’ opening brief at 10-15. The City‘s statutory authority to enact Ordinance 91-95 is not expressly placed in issue by the federal court‘s certified question. Nevertheless, we choose to resolve the issue inasmuch as the federal court indicated unambiguously, in the course of settling the precise language of the certified question, that it intended
the question [to] be as broad as is appropriate because [it did not] want the Su-
preme
Court to decide the issue, have the matter then go to the Ninth Circuit Court of Appeals, have someone make the argument that ... there [is] still [another] issue, send it back down to [the federal court] ... because it hasn‘t been decided, ... and [the parties] are right back at square one again.
Oct. 15, 1992 Tr. at 10-11.
HRS §§ 46-61 ,46-62 , and101-2 neither limit the counties’ general power of eminent domain nor divest them of the authority to enact ordinances allowing for the condemnation of land for any particular public purpose.
The City maintains that it has the authority to enact Ordinance 91-95 pursuant to
We therefore confront the task of interpreting general statutes that may appear to be in conflict with specific statutes relating to the same subject matter. Three rules of statutory construction are especially germane to the inquiry.14 First, legislative enactments are presumptively valid and
Unquestionably,
Thus, by construing the statutes in pari materia, we distill the following general scheme: (1)
We note that it is with our construction of the foregoing statutory scheme, and with that construction alone, that the dissenting opinion (dissent) takes issue.15 First, the dissent acknowledges that “[o]n superficial examination” it might appear that [
Second, the dissent concedes that “[b]ecause
Third, based on the history of various legislation subsequent to the inclusion, in 1951, of the “other public uses” clause in
We are unpersuaded by the dissent‘s arguments.
Reduced to its essence, the dissent‘s position is that the declarations of
Citing 2A Sutherland Statutory Construction § 47.23 at 216-17 (5th ed. 1992) for the proposition that “when the legislature expresses things through a list, the court assumes that what is not listed is excluded,” the dissent concludes that “the enumeration of specific uses in
In any event, we believe that the dissent‘s own reliance on the legislative history of
The dissent correctly suggests that this legislative history “reinforces the conclusion that
Courts cannot amend statutes in the guise of interpreting them, and they must presume that [the legislature] meant what it said.... Only “unmistakable support in the history and structure of the legislation,” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring), can justify a rejection of otherwise unambiguous language. Such “unmistakable support” for [the dissent‘s] construction is absent here.
Standard Oil Co. of California v. Agsalud, 442 F.Supp. 695, 703 (1977), aff‘d and reh‘g denied, 633 F.2d 760 (9th Cir.1980).
Accordingly, we hold that
- The City did not impermissibly delegate its power of eminent domain.
The Trustees next urge that “[t]he City lacks the authority to redelegate its eminent domain powers as attempted in Ordinance 91-95,” Trustees’ opening brief at 14, because sections 2.2 (relating to condemnation of condominium development leaseholds),16
The Trustees appear to have misread Honolulu, Haw., Rev. Ordinances §§ 38-2.2, 38-3.2, and 38-4.2 (Apr. 1992 Rev.). Although the Department is empowered to designate land for acquisition pursuant to these sections, by their very terms the Department merely facilitates the City‘s acquisition of the land subject to the decision of the City, through its City Council, actually to exercise the power of eminent domain as prescribed by
Because the Department‘s mere designation of land, as a means of facilitating its acquisition by the City, is only a preliminary step in the condemnation process that precedes the institution of eminent domain proceedings at the behest of the City Council,
B. Ordinance 91-95 Is Not Preempted By HRS Chs. 46 , 101 , 516 , 516D , 519 , 514A , Or 421H , As Interpreted In Conjunction With The Hawai‘i Constitution.
We now turn directly to the question certified by the federal court. Relying on two distinct theories, the Trustees allege that Ordinance 91-95 is preempted by
The Trustees apparently rely on
General powers and limitation of the counties. Subject to general law, each county shall have the following powers and shall be subject to the following liabilities and limitations:
....
(13) Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute, provided also that the ordinance does not disclose or express an implied intent that the ordinance shall be exclusive, or uniform throughout the State.
Effect of state statutes. No ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute of the State; provided that the ordinance is not inconsistent with and does not tend to defeat the intent or object of the statute or of any other statute; provided also that the statute does not disclose an express or implied intent that the same shall be exclusive, or uniform throughout the State.
Prior to 1988,
Effective June 13, 1988, the legislature enacted Act 263, the purpose of which was
to repeal the special or local statutes setting forth the powers of particular counties, and to replace these provisions with grants of general powers which would have uniform operation in all counties of the State ... so that all counties [would] have similar general powers or limitations that supersede currently unnecessary provisions.
Hse.Stand.Comm.Rep. No. 433-88, in 1988 House Journal, at 1006. Put more succinctly, the purpose of the act was “to promote uniformity by replacing special and local laws with grants of general powers that apply to all counties.” Act 263, § 1, 1988 Haw. Sess. Laws 483. Among other things, Act 263 repealed Subtitles 2 and 3 (and hence
As formulated by Act 263,
Unfortunately,
This court has recognized that departure from a literal construction of a statute “is justified when such construction would produce an absurd ... result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.” Franks v. City and County of Honolulu, 74 Haw. 328, 341, 843 P.2d 668, 674 (1993) (quoting Hawaiian Ins. & Guar. Co. v. Financial Sec. Ins. Co., 72 Haw. 80, 85, 807 P.2d 1256, 1259 (1991)).
In Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893, 16 Cal.Rptr.2d 215, 844 P.2d 534 (1993), the California Supreme Court recently synthesized the general principles governing preemption as follows:
If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.
A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Local legislation is “duplicative” of general law when it is coextensive therewith.
Similarly, local legislation is “contradictory” to general law when it is inimical thereto.
Finally, local legislation enters an area that is “fully occupied” by general law when the Legislature has expressly manifested its intent to “fully occupy” the area, or when it has impliedly done so....
Id. at 897, 16 Cal.Rptr.2d at 217-18, 844 P.2d at 536-37 (citations omitted and emphasis added).23
This court has employed a compatible but somewhat different approach to the issue of preemption of county ordinances by state statutory law, which might best be characterized as a “comprehensive statutory scheme” test. In In re Application of Anamizu, 52 Haw. 550, 481 P.2d 116 (1971), we considered whether a city ordinance mandating the certification of electrical contractors by a municipal agency was preempted by a state statutory scheme that governed the licensing of all building contractors. Applying
Anamizu is distinguishable from the present case on at least two grounds. First, the state statute in question created a global (i.e., “comprehensive“) mechanism for regulating the licensing of the entire universe of building contractors within the state; by contrast, the city ordinance undertook to regulate only electrical contractors—a discrete galaxy within, or a subset of, that universe. In the matter before us, the applicable state laws and Ordinance 91-95 establish the right of lease-to-fee conversion with respect to entirely distinct galaxies—residential houselot leasehold interests in the case of state law, see
Likewise, in Citizens Utilities Co. v. County of Kauai, 72 Haw. 285, 814 P.2d 398 (1991), we held that a county ordinance regulating the height of utility poles was preempted by the combination of
Id. at 288-89, 814 P.2d at 400. In doing so, we applied the Anamizu test to
Analogously to Anamizu, but unlike the present matter, the state law at issue in Citizens Utilities governed a substantive “universe,” i.e., global regulation of public utilities, whereas the relevant county ordinance addressed only a “galaxy” thereof—utility pole regulation. Accordingly, while the principle of preemption law reaffirmed in Citizens Utilities governs the question before us, the facts of the case are similarly inapposite.
In summary, a municipal ordinance may be preempted pursuant to
- Ordinance 91-95 does not cover the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state.
a. HRS chs. 46 and 101
The Trustees argue that
comprehensive and uniform eminent domain scheme (Chapter 101) that preempts all locally enacted condemnation procedures.” Trustees’ opening brief at 18. The Trustees’ argument, however, is logically flawed.
As we have noted,
It is precisely these two subjects that are subsumed within Ordinance 91-95. In the first instance, the ordinance
Accordingly, it cannot be said that Ordinance 91-95 “covers the same subject matter embraced within”
b. HRS ch. 516
The Trustees next urge that
“The interpretation of a statute is a question of law reviewable de novo. When construing a statute, our foremost obligation ‘is to ascertain and give effect to the intention of the legislature[,]’ which is to be obtained primarily from the language contained in the statute itself.” Franks v. City and County of Honolulu, 74 Haw. 328, 334, 843 P.2d 668, 671 (1993) (quoting In re Hawaiian Telephone Co., 61 Haw. 572, 577, 608 P.2d 383, 387 (1980)) (other citation omitted); Kaapu v. Aloha Tower Dev. Corp., 74 Haw. 365, 387, 846 P.2d 882, 891 (1993). In other words, “[t]he fundamental starting point for statutory interpretation is the language of the statute itself.... And where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.” Estate of Caraang, 74 Haw. at 633-34, 851 P.2d at 328.
This chapter applies to all lands leased as residential lots which are owned or held privately or owned by the State or its political subdivisions, except Hawaiian home lands which are subject to Article XII of the Constitution of the State and lands owned or held by the federal government. This chapter is not meant to supersede or preclude any other remedy at law available to residential leasehold lessees or the State....
(Emphasis added.)
Thus, by its own plain and unambiguous language, the subject matter of
version
Moreover, the fact that
In short,
ing involuntary lease-to-fee conversion and, accordingly, cannot preempt Ordinance 91-95 on that basis.
c. HRS chs. 516D , 519 , 514A , and 421H
Finally, the Trustees contend that
Similarly,
- Ordinance 91-95 does not conflict with state law on the basis that it enters an area fully occupied thereby or that it is duplicative with respect thereto.
We next address the Trustees’ second preemption theory, namely, that “Ordinance 91-
First, according to the Trustees, because the ordinance conflicts with
legislate in the area.” Trustees’ opening brief at 31. Second, the Trustees rely on Fasi v. City and County of Honolulu, 50 Haw. 277, 439 P.2d 206 (1968),29 for further authority that Ordinance 91-95 conflicts with
In effect, the Trustees’ two “preemption-by-conflict” arguments suggest that Ordinance 91-95 conflicts with state law because it (1) “enters an area fully occupied” thereby and (2) is “duplicative” (i.e., “coextensive“) with respect thereto. See Sherwin-Williams, 4 Cal. 4th at 897, 16 Cal.Rptr.2d at
None of this court‘s decisions addressing the question whether a municipal ordinance is preempted by a state statutory scheme have explicitly dealt with constitutional issues. However, article VIII, section 6 of the Hawai‘i Constitution and
Article VIII, section 6 was originally promulgated by the 1950 Constitutional Convention to “make clear” that the powers conferred upon the counties in article VIII did “not restrict any of the powers of the legislature on state matters.” Stand.Comm.Rep. No. 74, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1950, at 230 (1960).
Thereafter, during the 1968 Constitutional Convention, the framers, “[i]n recommending retention [of article VIII, section 6], recognize[d] the sovereignty of the [s]tate over its political subdivisions and its inherent power to enact laws of statewide concern.” Stand. Com.Rep. No. 53 (Majority), in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1968, at 232 (1973). See also Marsland v. First Hawaiian Bank, 70 Haw. 126, 133, 764 P.2d 1228, 1232 (1988) (“[A]lthough article VIII, section 2[] created ‘home rule,’ it did not repeal section 6[,] which reserves matters of statewide concern to the legislature.“); City and County of Honolulu v. Ariyoshi, 67 Haw. 412, 416, 689 P.2d 757, 761 (1984) (“In order to give effect to section 6, the power of the legislature to enact laws of statewide concern cannot be diminished.“).
In enacting the statute implementing article VIII, section 6, i.e.,
Thus, if an ordinance truly conflicts with Hawai‘i statutory law that is of statewide concern, then it is necessarily invalid because it violates article VIII, section 6 of the Hawai‘i Constitution and
Inasmuch as most state statutes will, by their very nature, govern matters of statewide concern, see 1A N.J. Singer, Sutherland Statutory Construction § 23.16, at 382 n. 1 (5th ed. 1991), we assume, arguendo, that
a. Ordinance 91-95 does not enter an area fully occupied by state law.
On the assumption that
In section III.B.1.b of this opinion, we concluded that: (1) by its own plain and unambiguous language, the subject matter of
Similarly, in section III.B.1.c of this opinion, we concluded that: (1)
b. Ordinance 91-95 is not duplicative of state law.
As a final matter, and again assuming that the statutes govern matters of statewide concern, we take up the question whether Ordinance 91-95 conflicts with
In section III.B.1.a of this opinion, we concluded that Ordinance 91-95 did not cover the same subject matter as that embraced within
By the same token, having concluded in sections III.B.1.b and III.B.2.a of this opinion that
3. Ordinance 91-95 is not preempted by state constitutional or statutory law.
Because Ordinance 91-95 does not cover the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state, and because the ordinance does not conflict with state constitutional or statutory law on the basis that it enters an area fully occupied thereby or that it is duplicative with respect thereto, we hold that Ordinance 91-95 is not preempted by article VIII, section 6 and article IX, section 5 of the Hawai‘i Constitution or by
IV. CONCLUSION
Based on the foregoing analysis, we answer the federal court‘s certified question as follows: According to Hawai‘i state law, Ordinance 91-95 is not preempted by
KLEIN, Justice, dissenting with whom MOON, Chief Justice, joins.
I agree with the majority that the certified question before us encompasses both the is-sue
I.
The City‘s authority to exercise the power of eminent domain is derived exclusively from statutory grants of that authority.
“Article VIII of the Hawai[‘]i State Constitution defines the relationship between the state and county governments. Article VIII, section 1, authorized the state legislature to create the counties and grant the counties such power as they [sic] deem necessary.” Marsland v. First Hawaiian Bank, 70 Haw. 126, 132, 764 P.2d 1228, 1232 (1988).1 Although Article VIII, section 2, establishes the counties’ “home rule” powers with respect to charter provisions concerning the structure and organization of county government, the constitutional protection afforded counties against legislative intrusion is limited. Id. at 132-33, 764 P.2d at 1232 (citations omitted).2
The City does not appear to dispute that it has no inherent power of eminent domain, see 11 McQuillin Municipal Corporations § 32.12 at 324 (3d ed. 1991) (McQuillin), or that it “may exercise only those powers which have been delegated to [the counties] by the State legislature.” In re Application of Anamizu, 52 Haw. 550, 553, 481 P.2d 116, 118 (1971). The City contends, however, that the legislature has granted eminent domain powers to the several counties pursuant to
“Our primary duty in interpreting and applying statutes is to ascertain and give effect to the legislature‘s intention to the fullest degree.” Methven-Abreu v. Hawaiian Ins. & Guar. Co., Ltd., 73 Haw. 385, 392, 834 P.2d 279, 284 (1992) (citation omitted). Although, “[t]he intention of the legislature is to be obtained primarily from the language contained in the statute itself,” Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 416 (1989), we have rejected an approach to statutory construction which limits us to the words of a statute . . . for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Treloar v. Swinerton & Walberg Co., 65 Haw. 415, 421, 653 P.2d 420, 424 (1982) (citations omitted). Thus, the plain language rule of statutory construction, see Sherman v. Sawyer, 63 Haw. 55, 59, 621 P.2d 346, 349 (1980), does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review.
II.
The power of eminent domain referred to in
The statutes relating to the scope of the City‘s authority to exercise the power of eminent domain,
Subject to general law, each county shall have the following powers and shall be subject to the following liabilities and limitations:
* * * * * *
(6) Each county shall have the power to exercise the power of condemnation by eminent domain when it is in the public interest to do so.
“On superficial examination” it might appear that this provision grants broad powers of eminent domain to the counties, limited only by the requirement that the powers be exercised “in the public interest.” Closer examination of the language of the statute, application of principles of statutory construction, and a review of the legislative history, however, all demonstrate that the power of eminent domain referred to in
Furthermore, in addition to the “subject to general law” caveat, established principles of statutory construction tell us that “when the legislature expresses things through a list, the court assumes that what is not listed is excluded“.4 2A Sutherland Statutory Construction § 47.23 at 216, 217 (5th ed. 1992) (Sutherland) (“enumeration weakens [the force of the general law] as to things not
Finally, examination of the legislative history reveals that the apparent grant of broad authority in
III.
The “other public uses” clause in
The analysis next turns to the limits on the exercise of eminent domain powers imposed
Prior to 1951,
In 1951, however, significant changes were made to both
In addition to failing to indicate its intent to enlarge the counties’ eminent domain authority, the legislature chose to retain the enumerated list of permissible uses in
Further evidence of the legislative intent is found in subsequent acts of the legislature. See Gomes v. Campbell, 37 Haw. 252, 257 (1945) (quoting 50 Am.Jur. Statutes § 337) (“[I]n determining the meaning of a statute, [it is proper] to take into consideration subsequent action of the legislature[^] . . . Indeed, it has been held that if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.“). In this regard, the act amending
Based on the disparate manner in which
IV.
The “other public uses” clause of
Having concluded that
The rule of statutory construction of ejusdem generis often applies when a statute contains an enumerated list followed by a general term. “Under this established rule of statutory construction, where words of general description follow the enumeration of certain things, those words are restricted in their meaning to objects of like kind and character with those specified.” Jones v. Hawaiian Elec. Co., Inc., 64 Haw. 289, 294, 639 P.2d 1103, 1108 (1982). At first glance the rule would appear to be particularly applicable in the instant case as we struggle to give effect to both the enumerated list of uses and the “other public uses” clause, for we have stated that
State v. Yan, 44 Haw. 370, 376-77, 355 P.2d 25, 29 (1960). The rule only applies, howev-er, when the following conditions exist: (1) the statute contains an enumeration by specific words[;] (2) the members of the enumeration[t]he purpose of the rule is to give effect to both the particular and general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words.
A construction of the statute that would give effect to the “other public uses” clause without rendering the enumerated list meaningless can be found, however, by examining the manner by which the legislature has granted eminent domain powers to the counties since the clause was added to
V. Conclusion
The legislature has neither amended the enumerated list in
Accordingly, I dissent.
Notes
Article VIII, section 1, of the Hawai‘i Constitution (emphasis added) provides:Rule 13. CERTIFICATION OF QUESTION OF HAWAI[‘]I LAW BY FEDERAL COURTS. (a) When certified. When a federal district or appellate court certifies to the Hawai[‘]i Supreme Court that there is involved in any proceeding before it a question concerning the law of Hawai[‘]i which is determinative of the cause, and that there is no clear controlling precedent in the Hawai[‘]i judicial decisions, the Hawai[‘]i Supreme Court may answer the certified question by written opinion.
The legislature shall create counties, and may create other political subdivisions within the State, and provide for the government thereof. Each political subdivision shall have and exercise such powers as shall be conferred under general laws.
Charter provisions with respect to a political subdivision‘s executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.
a residential apartment, together with an appurtenant undivided interest in common elements, located on land subject to a declaration of condominium property regime as defined in
HRS [ch.] 514A , together with an appurtenant undivided interest in common elements, both used or occupied, or developed, devoted, intended, or permitted to be used or occupied as a principal place of residence for a single family.
(A) Having one and only one class of stock outstanding;
(B) Each of the stockholders of which is entitled solely by reason of the shareholder‘s ownership of stock in the corporation, to occupy for dwelling purposes the dwelling unit in a building, owned or leased by the corporation, and situated on land leased by the corporation;
(C) No stockholder of which is entitled (either conditionally or unconditionally) to receive any distribution not out of earnings and profits of the corporation except in a complete or partial liquidation of the corporation; and
(D) Eighty per cent or more of the gross income for the taxable year in which the taxes and interest described in 26 U.S.C. [§] 216(a) are paid or incurred is derived from tenant stockholders.
This rule of statutory construction, sometimes referred to as expressio unius est exclusio alterius, is somewhat similar to the rule of construction relied on by the majority that “where there is a ‘plainly irreconcilable’ conflict between a general and a specific statute concerning the same subject matter, the specific will be favored.” Majority at 1202 (quoting Mahiai v. Suwa, 69 Haw. 349, 356, 742 P.2d 359, 366 (1987)). The Mahiai rule, however, only applies when two statutes directly conflict. Compare State v. Spencer, 68 Haw. 622, 725 P.2d 799 (1986) (applying rule where one statute provided that any offense defined outside of the Hawai‘i Penal Code (HPC) was a class C felony and another statute, although defining an offense outside of the HPC, specifically provided that the offense was a class B felony) with State v. Pacariem, 67 Haw. 46, 677 P.2d 463 (1984) (not applying rule where one statute provided for special indeterminate terms of imprisonment not to exceed eight years in lieu of other authorized sentences for young adults convicted of class A felonies other than murder and another statute provided for mandatory life sentences for persons convicted of attempted murder). The majority correctly concludes that the Mahiai rule does not apply in the instant case becausea stock cooperative corporation which is organized as a nonprofit corporation for the purpose of holding title to, either in fee simple or for a term of years, improved real property, if all or substantially all of the shareholders of such corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation, which right of occupancy is transferable only concurrently with the transfer of the share or shares of stock in the corporation held by the person having such right of occupancy....
In any case, the majority does not contest either that
a part of the property intended for any type of use or uses, and with an exit to a public street or highway or to a common element or elements leading to a public street or highway, and may include such appurtenances as garage and other parking space, storage room, balcony, terrace, and patio.
The same section defines “property” in relevant part to mean and include
the land, ... whether leasehold or in fee simple, to the extent of the interest held therein by the owner or lessee submitting such interest to the condominium property regime, the building or buildings, all improvements and all structures thereon, and all easements, rights, and appurtenances belonging thereto, which have been or are intended to be submitted to the regime....
Sen.Stand.Comm.Rep. No. 177, in 1951 Senate Journal, at 541. See also Hse.Stand.Comm.Rep. No. 473, in 1951 House Journal, at 527 (committee report on “substantially identical” version of the bill originating in the House of Representatives); Act 12, § 6, 1951 Haw.Sess.Laws 52, 61.[T]his measure provides generally that the power of eminent domain may be exercised for any “public use” instead of, as at present, attempting to define minutely each public use or purpose. Your committee believes that the question as to whether any particular use is a public use so as to permit the exercise of the power of eminent domain for the acquisition of property for such purpose, is a judicial one under the [United States] Constitution and the Hawaiian Organic Act (or State Constitution, when Hawai‘i becomes a State), and that it is neither necessary nor desirable for the legislature to attempt to define each particular public use.
Whenever any county deems it advisable or necessary to exercise the right of eminent domain in the furtherance of any governmental power, the proceedings may be instituted as provided in section 101-14[.]
General powers and limitation of the counties. Subject to general law, each county shall have the following powers and shall be subject to the following liabilities and limitations:
....
(6) Each county shall have the power to exercise the power of condemnation by eminent domain when it is in the public interest to do so.
Any county may institute proceedings . . . for the condemnation of property within the county for any of the purposes provided in this part which are within the powers granted to the county.
The essential provisions ofEach county shall have the following specific powers: To take private property for the purpose of establishing, laying out, extending and widening streets, avenues, boulevards, alleys, and other public highways and roads; for pumping stations, waterworks, reservoirs, wells, jails, police and fire stations, city halls, office and other public buildings, cemeteries, parks, playgrounds and public squares, public off-street parking facilities and accommodations, land from which to obtain earth, gravel, stones, and other material for the construction of roads and other public works and for rights-of-way for drains, sewers, pipe lines, aqueducts, and other conduits for distributing water to the public; for flood control; for reclamation of swamp lands; and other public uses within the purview of section 101-2 [.] (Emphasis added.)
Act 67 provided in pertinent part:Taking private property for public use; disposal of excess property. Private property may be taken for public use. Private property may be taken by the State or any county[.]
Each County shall have the following specific powers:
To take private property for the purpose of establishing, laying out, extending and widening streets, avenues, boulevards, alleys and other public highways and roads, for pumping stations, water works, reservoirs, wells and public squares, and for rights of way for drains, sewers, pipe lines, aqueducts and other conduits for distributing water to the public[.]
The essential provisions ofEminent domain; proceedings according to chapter 101. The proceedings to be taken on behalf of the county for the condemnation of property as provided in section 46-61, shall be taken and had in accordance with chapter 101, as the same may be applicable. (Emphasis added.)
Private property may be taken for the following purposes, which are declared to be public uses, to wit: sites for public buildings, fortifications, magazines, arsenals, navy-yards, navy and army stations, light houses, range and beacon lights, cemeteries, quarantine stations, pest-houses, hospitals, dumping places for garbage and refuse material, wharves, docks, piers, dams, reservoirs and bridges, also all necessary land over which to construct roads, canals, ditches, flumes, aqueducts, pipe lines and sewers; also all necessary land for growth and protection of forests, public squares and pleasure grounds; also all necessary land for improving any harbor, river or stream, removing obstructions therefrom, widening, deepening or straightening their channels; also all necessary land from which to obtain earth, gravel, stones, trees, timber, and all necessary material for the construction of any public work.
Efforts have been underway for centuries to establish that meaningful interpretation is possible in every statutory or constitutional case; the efforts have failed and the problem remains. The plain-meaning rule and the other “canons of construction” are the subject of a large and, on the whole, negative literature. The soundest criticism is not that the canons are wrong, although some are.... It is that they are just a list of relevant considerations, at best of modest utility. They are things to bear in mind: don‘t invalidate a statute if a saving construction is possible, don‘t lightly assume that by passing a new statute the legislature inadvertently repealed a previous one, don‘t ignore surrounding provisions, don‘t (the valid core of the plain-meaning rule) be too quick to override the apparent meaning, and so on. There are a vast number of canons, corresponding to the vast number of considerations that come into play (often unconsciously) when one is reading. Cautionary rather than directive, often pulling in opposite directions like their counterparts, the maxims of ordinary life ... , the canons are the collective folk wisdom of statutory interpretation and they no more enable difficult questions of interpretation to be answered than the maxims of everyday life enable the difficult problems of everyday living to be solved.
Many of the canons are not interpretive at all, in the sense of helping a court figure out what the legislature meant. Instead they establish presumptions, based on substantive policy, for resolving indeterminate statutory cases.... Substantive political principles used to decide cases when interpretation fails, they are an acknowledgment of the impossibility of resolving all statutory questions interpretively.
R.A. Posner, The Problems of Jurisprudence 279-80 (1990) (footnotes omitted).
Section 6 of Act 12 provided:The amendment of [
HRS § 101-2 ] by this Act shall not be interpreted as a legislative declaration that the purposes enumerated in said section before amendment are not public purposes, but said section [101-2], as so amended, shall be deemed to include all public purposes specifically mentioned therein before such amendment and any other additional public purposes.
(a) Subject to subsection (b) of this section, the [D]epartment [of Housing and Community Development] may designate all or that portion of a development containing residential condominium land for acquisition, and facilitate the acquisition of the applicable leased fee interests in that land by the [C]ity through the exercise of the power of eminent domain or by purchase under the threat of eminent domain[.]
(b) This land designated and acquired by the [C]ity may consist of a portion of or the entirety of the land area submitted to the declaration of condominium property.
(Emphasis added.)
Any law to the contrary notwithstanding, any county shall have and may exercise the same powers, subject to applicable limitations, as those granted the housing finance and development corporation pursuant to
chapter 201E insofar as such powers may be reasonably construed to be exercisable by a county for the purpose of developing, constructing, and providing low and moderate income housing. . . . The powers shall include the power, subject to applicable limitations, to:* * * * * *
(2) Acquire necessary land by lease, purchase, exchange, or eminent domain[.]
(a) Subject to subsection (b) of this section, the [D]epartment may designate all of a development for acquisition, and facilitate the acquisition of the leased fee interests in the development by the [C]ity through the exercise of the power of eminent domain or by purchase under the threat of eminent domain[.]
(b) The development designated and acquired by the [C]ity shall consist of the entire land parcel leased to a cooperative housing corporation.
(c) Where the cooperative housing development consists of both residential and nonresidential units, the terms “development,” “cooperatives,” or similar terms when used in this article, including the provisions on acquisition ... , shall be construed to apply only to the residential units.
(Emphasis added.)
(a) Subject to subsection (b) of this section, the [D]epartment may designate all or a portion of the land beneath a planned development containing residential units for acquisition, and facilitate the acquisition of the applicable leased fee interests in such land by the [C]ity through exercise of the power of eminent domain or by purchase under the threat of eminent domain[.]
(b) The land designated and acquired by the [C]ity may consist of a portion of or the entire land area submitted to the declaration of planned development.
(Emphasis added.)
The majority assails this analysis as “pure speculation,” arguing that the reason why the legislature acted in the way that it did is “ultimately unknowable.” Majority at 1204. The very concept of a single legislative intent, however, is a legal fiction that is inherently based on speculation. Whenever we endeavor to ascertain the legislature‘s intent, we are speculating as to the intentions of the individual legislators and, with the aid of established principles of statutory construction, attempting to adopt an interpretation that most closely approximates those intents. Thus, the fact that the legislature‘s reasons for acting are “ultimately unknowable” is not a sound basis for disregarding relevant legislative actions and applicable rules of construction. In fact, it is precisely because the legislature‘s reasons are ultimately unknowable that rules of construction have developed. The majority‘s lengthy quotation of Judge Posner reinforces that very point. See majority at 1201 n. 14.Even accepting that the legislative intent is ultimately unknowable and that the canons of statutory construction discussed in the text “pull[] in opposite directions,” id., there are additional canons particularly applicable to legislative grants of eminent domain powers to local governments which “establish presumptions, based on substantive policy, for resolving indeterminate statutory cases.” Id. First, statutes granting power to municipal corporations are interpreted strictly against the municipal corpo-rations. 3 Sutherland § 64.02 at 260; 2 McQuillin § 10.18a at 1048 (3d ed. 1988). In addition, statutes granting the power of eminent domain are interpreted strictly against the grantee. 3 Sutherland § 64.06 at 284-85; 1A Nichols on Eminent Domain § 3.213[1] at 3-35 (3d ed. 1993); 11 McQuillin § 32.19 at 343. In conjunction, these principles reflect a strong policy against lightly allowing local governmental bodies to exercise the inherently sovereign power of eminent domain to divest individuals of their property. Moreover, if we cannot be certain whether the legislature intended to delegate eminent domain powers, we are well-advised to err against delegation: for if we erroneously allow the City to exercise powers it is not supposed to have, individuals will be wrongfully deprived of their property; whereas, if we erroneously prevent the City from exercising powers it is supposed to have, the result will merely be a delay until the legislature can enact a clearer statute. Therefore, where there is any doubt as to the scope of the delegation of eminent domain powers to the counties, we should adopt the narrowest interpretation that is reasonable.
Exercise of power by county. Whenever any county deems it advisable or necessary to exercise the right of eminent domain in the furtherance of any governmental power, the proceedings may be instituted as provided in section 101-14 after the governing authority (county council, or other governing board in the case of an independent board having control of its own funds) of the county has authorized such suit by resolution duly passed, or adopted and approved, as the case may be....
Plaintiff. ... Any county may institute proceedings in the name and on behalf of the county for the condemnation of property within the county for any of the purposes provided in this part which are within the powers granted to the county.
None of the parties to the present dispute have taken the position that the City‘s Department of Housing and Community Development controls the funds to effect the condemnation of land.
[i]t is clear that the legislature intended to reserve with the PUC the regulatory powers over public utilities, which was a matter of statewide concern to the legislature, and has preempted the power of the counties to regulate the height of utility poles. To allow the County to do so would be inconsistent with the intent of the statutory language expressly authorizing the PUC to supervise and regulate public utilities, which would include the height of utility poles.
Citizens Utilities, 72 Haw. at 288, 814 P.2d at 400. To paraphrase, we held, in effect, that the county ordinance had entered an area that was “fully occupied” by general state law. See Sherwin-Williams, 4 Cal. 4th at 897, 16 Cal.Rptr.2d at 217-18, 844 P.2d at 536-37.
Moreover, although not strictly speaking a preemption case, Waikiki Resort Hotel, Inc. v. City and County of Honolulu, 63 Haw. 222, 624 P.2d 1353 (1981), is also instructive. In the context of the proposition that “[a] municipal ordinance, which is enacted pursuant to authority contained in a state statute is invalid if it conflicts with the enabling statute,” we stated that “[a] test to determine whether an ordinance conflicts with a statute is whether it prohibits what the statute permits or permits what the state prohibits.” Id. at 241, 624 P.2d at 1366 (citations omitted).
Reserved powers. Notwithstanding the provisions of this chapter, there is expressly reserved to the state legislature the power to enact all laws of general application throughout the [s]tate on matters of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.
”
The [s]tate shall have the power to provide for, or assist in, housing, slum clearance and the development or rehabilitation of substandard areas. The exercise of such power is deemed to be for a public use and purpose. (Emphasis added.)
“[I]f the words used in a constitutional provision ... are clear and unam-
biguous, they are to be construed as they are written.” Hawaii Gov‘t Employees’ Ass‘n v. County of Maui, 59 Haw. 65, 76, 576 P.2d 1029, 1036 (1978) (quoting Spears v. Honda, 51 Haw. 1, 6, 449 P.2d 130, 134, reh. denied, 51 Haw. 103, 449 P.2d 130 (1968)). It is critical to our analysis of the question before us that, insofar as the state is accorded the power, inter alia, to “assist in” the matters that are the subject of