18 Haw. 616 | Haw. | 1908
OPINION OP THE COURT BY
Tbe defendants were charged before the district court of Honolulu with violating Sec. 1 of the ordinance of the county of Oahu made August 28, 1907, entitled “Order No. 9 regula!.-■ ing the construction and maintenance of awnings, shades and balconies within the fire limits of Honolulu,” by maintaining an awning between the 1st and 23d days of October, 1907, not constructed of cloth or canvas, extending over a part of a public sidewalk, on their building at the makai Waikiki corner ol River and King streets, within the fire limits of Honolulu as defined in Sec. 956 R. L., without a gutter on the awning to conduct water to the outer line of the sidewalk.
It was agreed that the defendants owned the building and maintained the awning which projected over the sidewalk and had no gutter, and that the building was erected by the defendants in October, 1906, according to plans and specifications approved by the superintendent of public works, which required
The defendants demurred to the charge on the following grounds:
“1. That no offense under the laws of the Territory of Hawaii is set forth or alleged in said charge.
“2. That said ordinance, known as Order No. 9, of the County of Oahu, is null and void in that: (a) It is unreason-, able, (b) .It. involves illegal discriminations against owners of awnings constructed of materials other than cloth or canvas, (c) It involves illegal discriminations against owners of awnings within the fire limits of Honolulu.”
The demurrer being overruled the defendants were sentenced to a fine of $10 each and $2.50 costs. On appeal to the circuit court the demurrer was-again overruled- and upon the facts' 'agreed a sentence of $10 each and costs was again imposed. The defendants excepted to the rulings as contrary to the law and the evidence.
Under the first ground of the demurrer the defendants’ argument is that the power given by the legislature to boards of county supervisors under Sec. 62, County Act, to “regulate by ordinance all local police, sanitary and other regulations not in conflict with the general laws of the Territory,” does not authorize the ordinance in question the subject of which is already covered by a territorial statute. The ordinance provides as follows:
“Section I. No person shall construct or cause to be constructed or maintain or cause to be maintained any awning, shade or balcony extending over any part of any public sidewalk, on any building within the fire limits of Honolulu as defined in Section 956 of the Revised Laws of Hawaii, without a gutter thereon to conduct the water to the building and a pipe to conduct such water to the outer line of the sidewalk so constructed and in such condition as not to permit water to accumulate and stand therein or to obstruct or interfere with public traffic upon such sidewalk;
“Provided, however, that the provisions of this ordinance shall not apply to cloth or canvass awnings or shades.
*618 “Section 13. Any person violating any provision of this ordinance shall, upon conviction, be lined in a sum not exceeding Three Hundred Dollars ($300.00).
“Section III. The continuance of any such violation after conviction shall be deemed a new offense for each day on which the same is so continued.
“Section IY. This ordinance shall take effect from and after its publication.”
The statute (Sec. 959 R. L.) provides as follows:
“No person owning or occupying any building fronting on any street, lane, alley or place within the fire limits of Honolulu, shall' construct or cause to be constructed or maintained any awning, shade or balcony, except in accordance with the following provisions: such awning, shade or balcony should bo securely supported on wrought iron brackets built into the walls, and shall be supported without posts, and shall be not less than eleven feet above the line of the curb levels of the sidewalk, and shall have a gutter formed to carry off the water to the line of the building, and from thence to the street gutter; provided, that no gutters will be required to be constructed on cloth or canvass awnings or shades; also, provided, that the height of all movable canvass or cloth awnings or shades, hereafter constructed, shall not be less than seven and a half feet above the line of the curb level or the sidewalk. ■ No awning, shade or balcony shall extend beyond the line of the curb. No awning, shade or balcony shall be inclosed to a greater height than three feet six inches; provided, that no awning, shade or balcony shall be erected on any building facing on any street, lane, alley or place which is thirty feet or less in width; and no awning, shade or balcony shall be constructed on the sides or rear of any building within the fire limits unless there is a clear space of not less than thirty feet between such building and the adjacent buildings, and then they shall be constructed of fireproof materials.”
By Sec. 962-the penalty for violating the provisions of this section is a fine of not more than five hundred dollars and each (lav’s violation after conviction is made a new offense.
The plaintiff claims that no conflict exists between the ordinance and the territorial statute and that by the large preponderance of decisions elsewhere general laws and municipal ordi
“The general doctrine is supported by the weight of judicial authority that, an act may be made a penal offense under the statutes of the state, and that farther penalties may be imposed for its commission or omission by municipal ordinance. But to authorize such ordinance the local corporation must possess sufficient charter power and such power must be exercised in the manner conferred and consistent with the constitution and laws of the state. The cases present some discord respecting the nature of the grant of power necessary to sustain such additional regulations. The question of power seems to be the chief source of conflict.” McQuillin, Municipal Ordinances, Sec. 500.
Many of the cases cited in support of the foregoing statements, as well as the statements, have confused two distinct questions. (1) Has the county power to pass an ordinance punishing an offense already punishable under state laws, and (2) can a man constitutionally be punished twice for an offense made penal by the county and the state?
The first question is merely one of statutory construction. The second is one of constitutional law. •
Under class A there would be no doubt of the validity of the ordinances so far as statutory construction goes, but there might be just as much diversity of opinion whether a particular offender could constitutionally be punished twice for the same act. It is on this question that there is the greatest conflict of authority. The weight of authority supported by Cooley (Const. Lim. 219) is that the offender can be punished twice without infringing the constitution, the minority and best reasoned opinion is that he cannot, but these cases divide again into two classes (a) those which assume that the county ordinance is valid and therefore sustain the plea of former conviction, and (b)' those, which assume that the county ordinance is void, not upon statutory construction for that is clear upon the hypothesis, but upon the ground tligt the grant of legislative power to the county to enact a penal law covering the same ground tends to put a man in jeopardy twice contrary to the constitution. The reasoning in this last class of cases is unsound, as the legislative power given to the county to make penal the same offense has nothing to do with the question whether one who is convicted under one law may successfully plead former conviction when tried for violation of the other law.
To put the distinction another way, it would be possible in two jurisdictions, both of which conceded that the county had power to enact the law in question, that there might be a difference upon the constitutional question whether an offender could be punished twice for the offense or whether, one conviction would be a bar to the other. This shows that the question is not the same.
In the same way McQuillin, Sec. 500, seems to be dealing with the constitutional question. The question in this case is not whether an act may' be made a penal offense under the statute of the state and that further penalties may be imposed by' ordinance, the question is what the legislature has done and not what it may constitutionally do. That question is treated in a preceding section, in which McQuillin says, “Under the usual grant of municipal powers which in general terms includes the authority to enact all necessary ordinances to preserve the peace and advance the local government of the community the local corporation cannot provide by ordinance for the punishment of an act constituting a misdemeanor or crime by state statute.” McQuillin, Sec. 499.
And so Cooley, Constitutional Limitations, 219, supra, discusses the constitutional question whether “further penalties under proper legislative authority may he imposed by municipal by-laws.” The question in this case is not what may constitutionally' be done under proper legislative authority, but whether there is any proper legislative authority in this particular case. The same remark applies to the Alabama case cited in Cooley.
In re Sic, 73 Cal. 142, is directly in point upon the validity of an ordinance under Sec. 11, Art. 11 of the California-constitution which authorizes cities and towns “to pass and enforce within their limits such local police, sanitary and other regulations as do not conflict with general laws.” The defendant was arrested for violation of the ordinance. As he had not been previously arrested for violation of the state law there was no constitutional question of double jeopardy involved. The only question was the validity of the ordinance under the above cited provision of the constitution. The court decided on the authority of Bishop and Dillon that this was not a sufficient grant of power, and that the ordinance was invalid. This decision seems right. But the court drifts into a constitutional discussion which seems wholly unnecessary. It assumes that if it held the ordinance valid a man could be punished twice for the same offense. This does not necessarily follow, because, while this is held by Cooley, a large number of courts hold that where an ordinance is valid, and because it is valid, 'a conviction under it may he pleaded as a har to the prosecution under the state laws. Discussion of the constitutional question, where none was involved, was not material to the decision.
In North Carolina general power to enact ordinances does not authorize ordinances covering state offenses. State v. Lang
Since a county derives its authority from the legislature it ought not to be inferred, in the absence of clearly expressed terms in the 'act under which the comity is organized, that the legislature has delegated to counties the power to legislate concerning their local affairs in such way as to supersede territorial laws or render them unnecessary. In order to come within the grant of legislative power given by the county act to boards of county supervisors ordinances should be reasonably required for the purpose of administering the local police and sanitary affairs of the county and this cannot be said of an ordinance, like that in question, made for a purpose fully provided for by the laws of the. Territory. It is not enough that ordinances regulating local police and sanitary matters shall 'not be in conflict with the general laws. If they undertake to penalize acts already made penal by territorial law they should be authorized expressly or by necessary implication.
The question presented in this case is not whether the defendants have been convicted or acquitted on.a charge of violating the territorial law about awnings bu't whether, while that law is in full force, counties can lawfully provide by ordinance a method for accomplishing the same object. There are grave objections to duplicating by. county ordinances the penal laws of the Territory. Not only are persons made liable thereby
Landis v. Borough of Vineland, 54 N. J. L. 75 (23 Atl. 357), cited in Smith, Sec. 521, holds that a difference in penalty such as exists here renders a city ordinance in conflict with a state law. The two North Carolina cases of Washington v. Hammond, 76 N. C. 33, and State v. Langston, 88 N. C. 692, also refer to the difference in penalty as creating a conflict.
We held in County of Oahu v. Whitney, 17 Haw. 174, 181, that “on the whole we are of the opinion that the legislature could delegate to the county boards of supervisors power to make ordinances relating to certain matters of local concern,” as, in cases of municipal corporations proper in which the exception to the rule that delegated power cannot be delegated “arises by implication from the immemorial practice which has recognized the propriety of vesting in municipal organizations certain powers of local regulation over matters in which the persons interested within such organizations are specially interested and in regard to which they are supposed to be especially competent to judge” (p. 178). While construing the comity act to accord with the spirit and intent of Sec. 56 Org. Act, authorizing the legislature to “provide* for the government” of as well as to “create counties and town and city municipalities,” it is proper that the conditions under which the county system was established should be borne in mind and due significance attached to the fact that its establishment was neither coincident, as was the case in the other territories, with the establishment of a general system of laws, nor, as in cases of towns and cities in the older states and in England, did the quasi municipal county system antedate or grow up with a general system of laws. It is undesirable to extend powers of counties so 'as to duplicate unnecessarily the laws of
Upon the foregoing considerations we hold that the ordinance is not authorized by law and therefore is null and void.
Exceptions sustained, judgment vacated.