24 Haw. 485 | Haw. | 1918
OPINION OP THE COURT BY
The defendant, L. L. McCandless, was charged in the circuit court of the first judicial circuit with having intentionally and unlawfully sold a bag of Hawaiian grown rice of one hundred pounds weight, charging and receiving therefor more than the sum of eight dollars from the purchaser thereof in violation of the provisions of a
“1st — Are the provisions of Section- 8, Act 221 of the Session Laws of 1917, in so far as they attempt to confer upon the Food Commission of the Territory, by said act created, the power and authority to fix, or control by fixing, the price or prices at which food shall be sold within the Territory, void as contrary to the provisions of Section 55 of the Organic Act extending the legislative power of the Territory ‘to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable?’
“2nd — Are the provisions of Section 8, Act 221 of the Session Laws of 1917, in so far as they attempt to confer upon the Food Comniission of the Territory, by said act created, the power and authority to fix, or control by fixing, in advance, or otherwise, the price or prices- at which food shall be sold within the Territory, null and Amid in that they are inconsistent with the laws of the United States locally applicable, undertake to penalize acts already made penal by the laws of the United States, to-wit, the Act of Congress of the United States of August 10, 1917, entitled ‘An Act to provide further for the national security and defense by encouraging the production, conserving the supply and controlling the distribution of food products and fuel,’ being Chapter 53 of the Statutes of the United States of America passed by the first session of the 65th Congress of 1917?
“3rd — Do the provisons of Section 8, Act 221 of the Session Laws of 1917, in so far as they attempt to confer upon the Food Commission of the Territory, by said act created, the power and authority to fix, or control by fixing, in advance, or otherwise, the price or prices at which food shall be sold within the Territory of Hawaii, abridge the privileges and (or) immunities of citizens of the United States, or deny to defendant the equal protection of the laws or deprive defendant of property without due process of law, and in this respect are they contrary to*488 the provisions of Articles 5 and 14 of the Amendments to the Constitution of the United States?
“4th — Does the alleged regulation of May 3rd, 1918, of the Food Commission of the Territory discriminate against growers of Hawaiian rice in favor of rice grown elsewhere than in Hawaii, or does it punish in respect to the sale of Hawaiian grown idee what is permitted as lawful in respect to the sale of foreign grown rice, and is it in these respects, or either of these respects, unequal in its operation, unreasonable, unjustly and (or) illegally discriminatory and (or) impinge the provisions of Articles 5 and 14 of the Amendments of the Constitution of the United States in respect to equal protection of the laws and deprivation of property without due process of the laws?
“5th — Are the provisions of Section 8, Act 221 of the Session Laws of 1917, illegal and void as an attempt by the Territory to exercise powers necessarily incidental to declaring war, supporting armies and maintaining a navy, the powers over and concerning which are reposed exclusively in the Congress of the United States under the provisons of Article 1, Section 8, Clauses 11, 12 and 13 thereof?
“6th — Does the information set forth facts sufficient to constitute an offense against the Territory of Hawaii?”
The reservation involves the constitutionality of section 8 of Act 221 of the Session Laws of 1917 and the regulation of May 3, 1918, passed by the territorial food commission under the potwers reposed in it by that section, and to this phase of the cause we will direct our attention.
The act of the legislature of the Territory of Hawaii of the session of 1917, and known as Act 221, is entitled “An Act creating a commission to increase, conserve, regulate and control the food supplies of the Territory of Hawaii, and defining its powers and duties and making an appropriation for the purposes thereof.” This act provides for the appointment of a commission and defines its general duties as follows:
“Section 4. General duties. During the period that the*489 United States shall be at wax and for snch further period as shall be reasonably necessary, it shall be the general duty of the commission to encourage and in every practicable manner to seek to increase the production of food within the Territory both for shipment to the mainland and so that there may be produced within the Territory, as nearly as may be, sufficient food to supply all local needs; also in every practicable manner to conserve and prevent the waste of food whether direct or indirect, including the improper or uneconomic use thereof.”
Section 5 of the act defines the general powers of the commission and section 8, which is the basis of this controversy, is as follows:
“Section 8. Eegulation of prices. Whenever in the opinion of the commission the circumstances justify and the public interest requires such action, it shall investigate, and, in so far as it is not prevented by the constitution or laws of the United States, may by regulation fix or control the price or prices at which any food or foods shall be sold within the Territory so that the same shall be reasonable, and to prevent unreasonable discrimination between localities, or between users or consumers under substantially similar conditions.”
It should be stated at the outset that there is no disposition by the defendant to question the authority of Congress to enact, under the war-power conferred by the Constitution of the United States, plenary laws regulating the prices of foods and other commodities which may be helpful to the nation while engaged in war. This authority to legislate is conferred, upon Congress by those constitutional provisions which grant to it power to declare war, to raise and support armies, etc., and which is known as the war-power of Congress. In the exercise of this authority Congress, shortly after the commencement of war between the United States and the Imperial German government, in April, 1917, passed what is known as the Federal Food Control Bill, which authorized the Presi
It cannot be questioned that by reason of the existing state of war and under its war-power Congress had the authority to pass the Federal Food Control Act and therein to authorize the President to fix the prices of certain commodities and to make unreasonable profiteering in others a crime. It however must be constantly borne in mind that this was a war measure pure and simple, enacted exclusively under the authority of the war-power of Congress. The authority to enact such a statute is incident to the clauses of the Constitution giving Congress power “to declare war * * *, to raise and support armies * * Art. I, Sec. 8. Under the same grant of power Congress passed the Selective Draft Act, which was recently sustained by the Federal Supreme Court (245 U. S. 366), and many other statutes. The police power of the Federal government, as well as of the various states and territories, can be exercised in either peace or war times, and is a power of government entirely separate and dis
Aside from the right of the state to take the property of the citizen for public uses upon just compensation being made therefor it may take a portion of his property by way of taxation in support of the government. It may control the use and possession of his property so far as may be necessary for the protection of the rights of others and to secure to them the equal use and enjoyment of their property. It may exercise control over the property of the citizen even to the extent of destroying it to arrest a conflagration or the ravages of pestilence or it may take it under the pressure of an immediate and overwhelming necessity to prevent a public calamity.
The controlling question in this case is, Do the provisions of section 8 of Act 221 of the Session Laws of 1917, in so far as they attempt to confer upon the food commission of the Territory by said act created the power and authority to fix, or to control by fixing, in advance, or otherwise, the price or prices at which food shall be sold in the Territory of Hawaii, abridge the privileges and (or) immunities of citizens of the United States or deny to defendant equal protection of the laws or deprive defendant of property without due process of law, and in these respects are they contrary to the provisions of articles 5 and 14 of the amendments to the Constitution of the United States? The point has been made that this court has already expressed the opinion that the fourteenth amendment to the Constitution of the United States applies only to states and does not apply to the territories. Robertson v. Pratt, 18 Haw. 590, 598. While we are not prepared to say that we would concur in the former expressions of this court thus announced it is conceded that article 5 of the amendments to the Federal Constitution does apply to the territories. This amendment provides that no person shall be deprived of life, liberty or property without
Counsel for the Territory submit that the territorial statute and the regulations of the commission fixing the price of rice constitute a proper exercise of the police power of the Territory and are not prohibited by article 5 of the amendments to the Constitution. Counsel cite in support of their position various statutes regulating the use of private property which have been sustained by the courts throughout the land, among which are statutes regulating common carriers and railroads, inn-keepers, wharfingers, ferrymen, millers, warehousemen, companies supplying water and gas, stockyard companies, telephone and telegraph companies, places of amusement, hackmen, and the protection and preservation of wild game, and statutes regulating the interest on money. The fixing of maximum rates of interest has always been upheld without question, the long established historical usage being Regarded as sufficient justification. It is only the assertion of a right of government to control the extent to which a privilege granted by it may be exercised and enjoyed. By the ancient common law it was unlawful to take any money for the use of money and all who did so were called usurers — a term of great reproach — and were exposed to the censure of the church; and if after the death of a person it was discovered that he had been a usurer while living his chattels were forfeited to the king and his lands escheated to the lord of the fee. No action could be maintained on any promise to pay for the use of money because of the unlawfulness of the contract. While the common law thus condemned all usury Parliament interfered and made it lawful to take a limited amount of interest. The regulation of grist mill tolls has been sustained upon the ground that from the early colonial times mills have always been aided by legislation in the public interest. Leg
Tbe power of the legislature to prescribe a closed season for game and fish, even though the same may incidentally affect game and fish privately owned and propagated, has always been treated as within the proper domain of the police power. See Lawton v. Steele, 152 U. S. 133; People v. Bridges, 142 Ill. 30, 41; Territory v. Hoy Chong, 21 Haw. 39.
So far as we are advised, aside from tbe act of tbe legislature of Hawaii now under consideration, no state or territory in tbe United States has ever enacted a law which attempted to fix tbe prices of farm products or other commodities privately owned, which are not impressed with a public interest as hereinabove defined, and no court, either Federal or state, has ever by expression or by inference indicated that any sncb a law could find justification under tbe police power of tbe state. Tbe only
Of course, strictly speaking, it may truthfully be said that the public have an interest in the price at which every commodity which is used by the public is sold but this general interest is not sufficient.to confer upon the legislature the power to control or regulate ‘the price of such commodities. “The mere fact that the public have an interest in the existence of the business and are accommodated by it cannot be sufficient for that would subject the stock of the merchant and his charges to public regulation. ' The public have an interest in every business in which an individual offers his wares, his merchandise, his services, or his accommodations to the public, but his offer does not place him at the mercy of the public in respect to charges and prices.” Cooley’s Const. Lim. p. 736. “The police power is broad in its scope but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect or preserve the public health, morals or safety or the general welfare. The prohibition of an act which the court can clearly see has no tendency to affect, injure or endanger the public in any of these particulars and which is entirely innocent in character is an act beyond the pale of this limitation and it is therefore not a legitimate exercise of police power.” Ex parte Quarg, 84 Pac. 766; People v. Steele, 231 Ill. 340.
It is a matter of common knowledge that rice is grown
We doubt not that the legislature wbicli enacted this law was inspired by the loftiest and most patriotic motives, but the evils flowing from tbe assumption of power to determine tbe compensation a man may receive for tbe use of Ms property have been ignored resulting in an invasion of the personal rights and liberties of the citizen guaranteed to him by the Federal Constitution. If the legislative enactment is to be held valid then there is no length to which legislative regulation may not extend. The prices of the wares of the butcher, the baker and the candlestick maker will all be rightful subjects of regulation. The government established by the great men who framed the Federal Constitution will be transformed and we shall have in its stead government paternalism carried to an extreme never heretofore contemplated. A doorway full of subtleties will be opened which we fear may lead to disastrous results. The rights of the citizen will be restricted and the powers of the government extended in a degree unknown in America since the adoption of the Constitution and unknoAvn in England since the days of ‘blind zeal and pious cruelty.’ Individual industry and efforts will cease to be worth while.
We are unwilling to go beyond the doctrine laid down by the Supreme Court of the United States in the granger cases and we hold that it is unlawful to interfere with the privileges of the individual to seek and obtain such compensation as he can for his private property where he neither asks nor receives from the sovereign power any •special right or immunity not given to or possessed by every other citizen and where he has not devoted his property to any public use so that the same becomes impressed with a public interest within the meaning of the law. The objects of the territorial statute, in so far as the same at
The third question propounded in the reserved questions submitted by the circuit court is answered in the affirmative. This conclusion necessarily results in a disposition of the case favorably to defendant and we deem it unnecessary to pass upon the other reserved questions and therefore return the same unanswered.