*1 WILLBURN. v. CHARLES P. STATE OF HAWAII No. 4552. April Cassidy, Wirtz, Richardson, C.J., JJ. Lewis Mizuha, LEWIS, BY OPINION OF THE J. COURT in the District Court of charged Defendant was “the Honolulu a violation of sections of specified with De- Waikiki Regulations Governing Beach, Rules promulgated partment Hawaii, Transportation, pursuant to Section Revised Laws Hawaii, 1955, *2 as amended.” On the magistrate defendant’s dis- motion, “* * * missed the on the that: Act 115 charge ground 1965 which amended section R.L.H. is 112-5, [S.L. 1955] vague and no or from policy based on standard indefinite, which the body administrative could rules promulgate any “* * * regulations.” or The court concluded that in effect, has to the Legislature delegated agency administrative and an power authority illegal make law which is delegation.”
An been taken the State on appeal having by points is R.L.H. question sole before us whether law, 1955, by as amended Act S.L. 1965 (Supp. 112-5, 115, 1965), § lacking preclude pro- so a standard as any under it of valid whatsoever. mulgation regulation Section further amended by R.L.H. was 1955, Act S.L. that amendment is not involved. As but 44, 1966, in perti- amended S.L. 112-5 read section nent as part follows:
“Any contrary of law to the notwith- provision Revised and Laws standing, 6C, and to conditions amended, Hawaii, herein the di- and covenants of easements described, to lands respect rector shall be authorized with also along public the shores of the State encumbered regulations govern- easement to and promulgate rules activities within such ease- ing any all uses and ment area.” is a broad along one,
While the term “lands shores” of Act 1151 it appears of the title light at public activities govern was legislative may be to as an aid to construction The title of an act resorted kling, language ambiguous. v. Con of tbe Smithies where the Haw. act Election, 600, 605; In 15 Haw. re Contested regulations “governing commercial tbe title relates to In this case public at beaches.” and beach activities body appears beaches. From the of the act it further only regu- activities within an area” “easement were to be By lated. an “easement act as the area,” shows, meant land encumbered easement. Thus the dependent upon act limited to beaches enjoyed through distinguished rights, easement from publicly understanding beaches For owned. an necessary. a brief review will be situation, provided building c. for the of a beach at and directed that construction work Waikiki, should begin legal arrangements not until “unless are made whereby general public right shall be assured of the portion to use such beach built as lies within seventy-five (75) high feet of the mean shoreward water *3 provided “Any mark.” It also was that: beach so built be and remain shall free all structures.” Further funds improvements appropriated by for beach were Act 201, by 3(c), S.L.. section item as 1963, amended Act IB, 31, appropriation S.L. 1964. This was Kuhio Beach im- provements. private along With reference to owners boundary shoreline from the northern of Kuhio Beach to boundary Boyal the northern it Hawaiian Hotel, required constructing was that before the Kuhio Beach improvements agreement the State enter into an with whereby these owners no accretion their land Avould except agreed. accrue as thenceforth, original Act S.L. with evi- enactment, 201, 1963, agreements dent reference to the made 1927 under the provided existing that “the act, easement created Agree- under the 1928-1929Waikiki Beach Beclamation provided ments shall remain as further that the is; any permanent State of Hawaii shall not construct struc- fronting any private property.” in tures the easement area amendatory urgency As in set forth clause of the act, difficulty § Act S.L. encountered because 1964, 1, the 1928-1929 by agreements areas created the easement “as mean mark high from water were measured landward uncertain how from time to and it was it exist time,” By under the new conditions. to be measured they were attorney given general the 1964 amendments to the drafting agreement, free hand new 1928- reference to the specific approval governor, from the appropriation eliminated agreements being provisions. areas established
We think it the easement clear under as act, 1928-1929 made by agreements by terms be modified to location or might the same as were to the agreement pursuant acts, made of R.L.H. meaning easement areas within 1965. Whether amended § included other areas covered Act 115 easement areas are not called upon besides the above we identified, ones there purposes It sufficient for say. present areas. Avereat least identifiable some at that he standing Defendant has not shown has tack the for indefiniteness to the areas covered act it. 274 U.S. v. 606; Territory Gorieb v. Cf., Fox, v. 23 Haw. Territory Field, 33 Haw. Reyes, 180, 194-95; Haw. As Chong, 230, 232-33; Territory Hoy 217 U.S. 534: stated Southern Ry. King, court that one who
“It is the settled law of this strike as violative of would down a state statute *4 by himself bring Federal Constitution must averments and the class as whom showing within He must act thus attacked is unconstitutional. feature of show unconstitutional alleged that him deprive and so injures operates law him, Federal Constitution.” rights protected by the on the State same to an attack based principle applies constitution. question constitutional
Moreover, he by going anticipated. avoided trial not to be Adams present 346. Klein, Haw. So we must for assume purposes proceedings that further would make no differ- and must confine defendant to the contention ence, that support any regulation the statute not will whatsoever. being There is still another Due consideration. to this appeal points only points by an on of law, decided magistrate are before us for and we are not review,2 now validity regulations, concerned with the of the on their applied appears face or as to defendant. so far as Indeed, regulations were not admitted into evidence,3 they appended they while been have to the State’s brief properly are not before us. appended copies
Also to the State’s are brief of the Agreements, 1928-1929Waikiki Beach Reclamation copy agreement Rider-Royal of an entitled “Surf Ha- May Agreement,” waiian Sector Beach dated These likewise not admitted into were evidence so far as appears. They part are not a of the certified record. by 112-5 from section
However, amended Act itself, appears it there were condi- “terms, tions and covenants” of the easements which were legislature matter of the and that the statute, had provide these in If the view. was to com- pliance with the conditions and covenants easements covered this itself furnished statute,4 governing body pro- a standard the administrative mulgating authorized the statute. We opinion are of the. this intent. The statute was the Klein, supra, 346, 349, construing Adams what is now Haw. R.R.H. § 208-1. 1955, § R.L.H. 224-7. See stated, As above these at least easements established included say agreements. the 1928-1929 We are whether called not. other areas as well were included.
656 “subject the term term used in used which was to,” officer sense of direction that the administrative be governed by what as can be seen from the refer followed, (Supp. ence therein made to R.L.H. 1955 6C, 1965), the Procedure That the term Administrative Act. “subject by,” to” mean “limited “subordinate to,” “regulated Tilley, by,” is well established. State v. Cf., Shay 64 Cal. Neb. 288 N.W. 523; Roth, App. 221 Pac. Revenue Comm’n v. 967, 969; App. A Bank Trust 50 Ga. S.E. Columbus Co., ” light “Subject at 555-56. Further 464; C.J.S., meaning by considering on of the statute is cast scope regulatory power that that it is, conferred, to all limited to easement areas and not conferred as was legislative purpose pro This beaches. shows carrying out the conditions and vide means of terms, granted, since covenants which easements were brought general purpose all a more would have coverage the act.5 within the beaches recognized construed and it When statute is so is legislative purpose provide compliance that the towas with the conditions covenants of easements, no unconsti there no absence of a standard and requirements tutionality appears. Even under Corp. Poultry A. L. A. United States, Schechter explained Fahey 332 U.S. U.S. v. Mallonee, 495, 535, there no unconstitu- both cited defendant, 245, 249, argues “any provision of law to the Defendant that the words contrary notwithstanding” the statute was intended show “having repealing the effect authorize issuance agree. legislature.” previously passed We do not These laws ¿nd words, authorized,” transportation phrase also be in the “the director shall the word “also” convey thought were intended to director authority being given additional to that conferred was by authority paragraphs new the section to which this the other of section authority added, notwith- and that such conferred might standing provision deemed otherwise have been law authority to vest such elsewhere. *6 tional delegation of the legislative function. The legis lature has merely conferred authority to deal with which “could he the subject judicial condemnation without further and has attached legislation/’6 penalties to the transgression of the terms, conditions and covenants upon which the easement rights were when the obtained, acts which constitute such transgression have been defined by the regulations. It is the legislature itself which, B.L.H. made has it a penal § offense to violate the regulations which define the acts constituting a transgression of the provisions governing the easement rights. United Cf., v. States 220 U.S. 521. Grimaud,
Panama
Co. v.
Refining
293 U.S.
Ryan,
also cited
turned on
defendant,
the construction of the statute.
While no standard was found by the
as stated
majority,
by Mr. Justice
“The
Cardozo, dissenting:
prevailing
opinion concedes that a standard will be as effective if
imported into
9(c) by reasonable implication as if put
§
there in
many
so
words.”
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As to defendant’s reliance on Lanzetta Newv. Jersey, and U.S. like cases dealing question with whether a penal complete itself and not de- statute, Poultry Corp. States, supra, L.A. A. Schechter v. United 295 U.S. 535, quoted Fahey Mallonee, supra, at 332 U.S. generally required higher Defendant contends that: “Courts have degree carry intelligible agencies standards directed administrative to. legislative government out the directions of the branch right sought delegated,” citing where the Fahey to create a crime is' to be supra, Mallonee, point at where the court commented on But, seen, distinguished this case comes within the class Schechter. as valid in Schechter.
pendent adoption regulations under is it, vague we do not find indefinite, these eases applicable. On the present what presented is record, question unconstitutional delegation legislative power under the doctrine of separation of powers, art. Constitution, 1. Since Ill, the statute not so in a lacking § standard as to preclude under promulgation it of regulation valid whatsoever, since is the only this question we presented, reverse and remand for further proceedings.
T. and John A. Irving Ohang Radway, Deputy Jr., Prosecuting Attorneys, City County of Honolulu H. Peters, Prosecuting with them on the Attorney, {John *7 for the briefs), appellant. State, é of Bouslog {Bouslog Symonds Harriet counsel), defendant, appellee. MIZUHA,
DISSENTING OPINION OF J.
I respectfully dissent. Act S.L. after stating in section the 1965,1 of the director authority transportation subject to conditions of easements herein “terms, covenants failed to enumerate the easements in the act. described,” Yet the “If majority opinion the was to states, provide for the compliance with conditions and terms, covenants of the covered in easements this statute, itself furnished a standard governing administrative in body promulgating regulations authorized statute. We are of the the intent.” opinion that this was Act reads: “ ‘Any contrary provision notwithstanding, of law to the subject 6C, Hawaii, 1955, amended, to Revised Laws of as terms, and covenants of herein de- conditions easements scribed, along respect the director shall also be authorized with to lands public shores State encumbered easement regulations any promulgate governing rules and and all uses and ” activities within such easement area.’ I with the court that Act 115 agree “vague district and indefinite” enumerate the for the statute failed to The reference to conditions and cove- easements. “terms, or may any nants” not have relation “uses and is there cer- any activities the easement area” nor within all to the tainty grants the easement are same fur- conditions and relied covenants the administrative nishing governing body standard Without definite promulgating regulations. ease- ment with its conditions and covenants” to guide “terms, the director of court the district was cor- transportation, rect in that the ruling was “based on no standard of from which the policy body administrative could pro- * * mulgate any rules or regulations
In the legislature passed Act S.L. 19662 its quoted entirety below. standards the director 2 "ACT 44. Amending Chapter Bill “A for an Act of Revised Laws of Relating Amended, Hawaii to Harbors. ~by Legislature "Be it Enacted the State Hawaii: hereby urgency “SECTION This isAct declared to be an measure necessary meaning deemed in the interest within the of section 11 of III of the Article Constitution the State of Hawaii. following constituting urgency: is a “The statement facts such delegation improper power, “On the of an basis the District Court recently Director of ing along enabling 1965, giving that Act ruled Session Laws of Hawaii Transportation power promulgate govern- the uses and activities wherever State has a easement State, the shores A unconstitutional. review of the *8 Regulations the statutes Hawaii Shore Waters they promulgated were indicates that should be amended in to order constitutionality regulations. avoid similar attacks on the of said constitutionality “Though Regula- of the the Hawaii Shore Waters yet contested, enabling been it is tions has not desirable that the statute provide specific language against be amended to more insure to such safety protection of contest. The waters of and and the the tourists users of be State would assured. the thus 2. of “SECTION Section 122-5 of Revised Laws Hawaii hereby by adding paragraph, a new read amended as follows: “ powers transportation ‘In addition to the vested in of the director by and welfare in director, promote public safety, sections 112-1and health or on the shore waters and and on en- shores beaches may public, alter, promulgate, of easements in favor cumbered with amend and repeal regulations waters, governing rules and the shore public. shores and beaches encumbered with in favor of easements
must now follow in rules promulgating his and regulations are to be based solely upon “public health and safety, in welfare or on the shore waters and and on shores * * beaches encumbered with easements promulgated may paragraph The rules and to be under this include: “‘(a) Safety requirements measures, practices and in or on the State; shore waters and shores of the “‘(b) licensing registration persons organizations The and of or engaged in in commercial activities or on the shore waters or shores of State; “‘(c) licensing registration equipment The and utilized for com- State; mercial activities or on the shore waters or shores of the “ ‘(d) prohibition following of the uses and activities on beaches public: (1) encumbered with easements favor of the commercial activities, any (2) parking display personal prop- storage, erty, (3) any obstructions, any use and placement (4) or structures other or interfere uses activities that with the enjoyment of said beaches. “‘(e) Any relating safety, other matters health welfare general public.’ hereby adding I “SECTION Part amended section, new read as follows : “ part, ‘Section 112- . For the of this if not Definitions. inconsistent with the context: “ ‘ waters and shores” shall mean all “Shore ocean waters below jurisdiction high mean mark and within the State. water “ ‘ public” with easements in favor of the “Beaches encumbered any along shores of the above means lands which lie mean now, may high are be water mark and which or hereafter encumbered bathing purposes easements in favor of the and for foot passage.’ Severability. any portion appli- If of this Act or its “SECTION 4. any persons to- or circumstance is held to be invalid for cation hereby reason, legislature of in- declares that the decision then validity remaining portions validity of this not affect the shall Act. approval.” upon its This shall take effect “SECTION 5.