the Organic Act (Part 2)

§ 9. Amendment of official titles.

That wherever the words "President of the Republic of Hawaii," or "Republic of Hawaii," or "Government of the Republic of Hawaii," or their equivalents, occur in the laws of Hawaii not repealed by this Act, they are hereby amended to read "Governor of the Territory of Hawaii," or "Territory of Hawaii," or "Government of the Territory of Hawaii," or their equivalents, as the context requires.

CASE NOTES

Cited in Fugihara Oriemon v. Territory of Haw., 13 Haw. 413 (1901).

§ 10. Construction of existing statutes.

That all rights of action, suits at law and in equity, prosecutions, and judgments existing prior to the taking effect of this Act shall continue to be as effectual as if this Act had not been passed; and those in favor of or against the Republic of Hawaii, and not assumed by or transferred to the United States, shall be equally valid in favor of or against the government of the Territory of Hawaii. All offenses which by statute then in force were punishable as offenses against the Republic of Hawaii shall be punishable as offenses against the government of the Territory of Hawaii, unless such statute is inconsistent with this Act, or shall be repealed or changed by law. No person shall be subject to imprisonment for nonpayment of taxes nor for debt. All criminal and penal proceedings then pending in the courts of the Republic of Hawaii shall be prosecuted to final judgment and execution in the name of the Territory of Hawaii; all such proceedings, all actions at law, suits in equity, and other proceedings then pending in the courts of the Republic of Hawaii shall be carried on to final judgment and execution in the corresponding courts of the Territory of Hawaii; and all process issued and sentences imposed before this Act takes effect shall be as valid as if issued or imposed in the name of the Territory of Hawaii: Provided, That no suit or proceedings shall be maintained for the specific performance of any contract heretofore or hereafter entered into for personal labor or service, nor shall any remedy exist or be enforced for breach of any such contract, except in a civil suit or proceeding instituted solely to recover damages for such breach: Provided further, That the provisions of this section shall not modify or change the laws of the United States applicable to merchant seamen.

That all contracts made since August twelfth, eighteen hundred and ninety-eight, by which persons are held for service for a definite term, are hereby declared null and void and terminated, and no law shall be passed to enforce said contracts in any way; and it shall be the duty of the United States marshal to at once notify such persons so held of the termination of their contracts.

[Am June 27, 1952, c 477, § 403(a), 66 Stat 279]

Historical note. - On contract labor laws, see note to Joint Resolution of Annexation, RLH 1955, page 13.

CASE NOTES

Writ of ne exeat was available, in an action of assumpsit, to prevent a defendant from going away from the Territory or to compel him to give security for the payment of the judgment that might be recovered. The execution of the writ would subject the defendant to imprisonment for debt, contrary to the provisions of the Organic Act. Oahu Lumber & Bldg. Co. v. Ding Sing, 15 Haw. 412 (1904).

Probate judge's power to compel administrator to perform trust not within prohibition against imprisonment for debt. - The statutory power of a judge in probate to compel an administrator to perform his trusts and to account in all respects for the discharge of his official duties is the same as the compulsory power of equity to enforce its decrees and is not within the prohibition against imprisonment for debt. In re Estate of Ahi, 19 Haw. 232 (1908) (decided under prior law).

Pending admiralty case heard in Hawaiian court. - Appeal in admiralty was one of the other proceedings then pending in the courts of the Republic of Hawaii which were to be carried on to final judgment and execution in the corresponding courts of the Territory of Hawaii, even though admiralty cases brought after the effective date of the Organic Act would have to be brought in the federal district court, subject to the right of appeal to the Circuit Court of Appeals for the Ninth Circuit. Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902).

This section had no application to stipulation in contract wherein defendant agreed not to exhibit or deal in motion picture films in Hawaii. Consolidated Amusement Co. v. Hughes, 22 Haw. 550 (1915).

Cited in Hind v. Wilder's S.S. Co., 13 Haw. 174 (1900); Carter v. Gear, 197 U.S. 348, 25 S. Ct. 491, 49 L. Ed. 787 (1905); Kunewa v. Kaanaana, 18 Haw. 252 (1907); Honolulu Athletic Park v. Lowry, 22 Haw. 585 (1915); Honolulu Athletic Park v. Lowry, 22 Haw. 733 (1915); Rawlins v. Izumo Taisha Kyo Mission, 36 Haw. 721 (1944); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

§ 11. Style of process.

That the style of all process in the Territorial courts shall hereafter run in the name of "The Territory of Hawaii," and all prosecutions shall be carried on in the name and by the authority of the Territory of Hawaii.

[Rep L Sp 1959 1st, c 5, § 8]

CASE NOTES

Jurisdiction over violations of Prohibition Act. - In conferring jurisdiction over violations of the Prohibition Act on the courts of the Territory, Congress must clearly have intended that that jurisdiction should be exercised by the appropriate courts of the Territory in the usual manner in which similar jurisdiction is exercised by them and with the machinery at their command. In re Abreu, 27 Haw. 237 (1923); Territory v. Kitahara, 27 Haw. 397 (1923); Territory v. Higashiguchi, 27 Haw. 399 (1923).

Cited in Territory ex rel. County of Oahu v. Whitney, 17 Haw. 174 (1905).

ARTICLE 2. The Legislature.

Historical note. - Chapter II of this act (§§ 12 to 62), excepting § 15, was taken, with some modifications, from the Constitution of 1894. See also, RL 1905, p. 51, and RL 1915, p. 29.

§ 12. The legislative power.

That the legislature of the Territory of Hawaii shall consist of two houses, styled, respectively, the senate and house of representatives, which shall organize and sit separately, except as otherwise herein provided.

The two houses shall be styled "The legislature of the Territory of Hawaii."

CASE NOTES

Clerk of the house of representatives was an "officer" within the meaning of Section 5408, Revised Statutes of the United States, which prohibited officers having custody of records, etc., from fraudulently taking away, withdrawing, or destroying any such record. United States v. Meheula, 2 U.S.D.C. Haw. 18 (1904).

Settlement of legal or moral obligation for the courts and not the legislature. - Where the facts out of which either a legal or a moral obligation is claimed to arise are disputed, the settlement of the contention is not a rightful subject of legislation, but falls within the province of the courts. De Mello v. Fong, 164 F.2d 232 (9th Cir. 1947).

Cited in De Mello v. Fong, 37 Haw. 415 (1946).

§ 13.

That no person shall sit as a senator or representative in the legislature unless elected under and in conformity with this Act.

CASE NOTES

Cited in Cooke v. Thayer, 22 Haw. 247 (1914).

§ 14. General elections.

That a general election shall be held on the Tuesday next after the first Monday in November, nineteen hundred, and every second year thereafter: Provided, however, That the governor may in his discretion, on thirty days' notice, order a special election before the first general election, if, in his opinion, the public interests shall require a special session of the legislature.

Cross References. - As to election of delegate, see § 85.

CASE NOTES

Authorizing legislature to alter or amend election laws not authorization to provide for election of members. - Section 85 of the Organic Act, as amended June 28, 1906, authorizing the legislature of the Territory to alter or amend the election laws of the Territory, did not authorize the legislature to provide by statute for the election of members of the legislature at a time other than that fixed by this section for the holding of general elections. Cooke v. Thayer, 22 Haw. 247 (1914).

Cited in Fairchild v. Smith, 15 Haw. 265 (1903); Lane v. Fern, 20 Haw. 290 (1910).

15. Each house judge of qualifications of members.

That each house shall be the judge of the elections, returns, and qualifications of its own members.

CASE NOTES

Effect of failure to reapportion membership on subsequently enacted statute. - The question of whether the failure of the legislature of the Territory, at its first regular session, after the census enumeration was ascertained, to reapportion the membership in the senate and house of representatives, as required by § 55 of the Organic Act, rendered invalid a statute enacted by the legislature subsequent to such requirement becoming effective, was a political question and not justiciable. Each house of the legislature under the Organic Act was the judge of the elections, returns and qualifications of its own members, which power, coupled with the well-recognized independence of the legislative branch of the government, forbade interference by the judiciary with legislative expediency. Territory v. Tam, 36 Haw. 32 (1942).

Cited in Harris v. Cooper, 14 Haw. 145 (1902).

16. Disqualification of legislators.

That no member of the legislature shall, during the term for which he is elected, be appointed or elected to any office of the Territory of Hawaii: Provided, That nothing in this Act shall prevent a member of the legislature from serving as a delegate to a constitutional convention.

[Am Oct. 26, 1940, c 752, 63 Stat 926]

CASE NOTES

"Office of the territory" defined. - In its known and ordinary significance, the phrase "office of the territory of Hawaii" does not include offices purely local or municipal, but includes only such offices as were created for the purpose of carrying on the business of the territorial government. Hollinger v. Kumalae, 25 Haw. 669 (1920) (decision under prior law).

17. Disqualifications of government officers and employees.

That no person holding office in or under or by authority of the Government of the United States or of the Territory of Hawaii shall be eligible to election to the legislature, or to hold the position of a member of the same while holding said office.

CASE NOTES

Notaries public and similar officers held not eligible to election to the legislature. In re Notaries Pub. & Similar Officers to Sit in Legislature, 8 Haw. 561 (1887).

18.

No idiot or insane person, and no person who shall be expelled from the legislature for giving or receiving bribes or being accessory thereto, and no person who, in due course of law, shall have been convicted of any criminal offense punishable by imprisonment, whether with or without hard labor, for a term exceeding one year, whether with or without fine, shall register to vote or shall vote or hold any office in, or under, or by authority of, the government, unless the person so convicted shall have been pardoned and restored to his civil rights.

CASE NOTES

Cited in In re Loucks, 13 Haw. 17 (1900); Kanealii v. Hardy, 17 Haw. 9 (1905); Territory ex rel. Willis v. Kanealii, 17 Haw. 243 (1905); In re Chung, 44 Haw. 220, 352 P.2d 846 (1960).

19. Oath of office.

That every member of the legislature, and all officers of the government of the Territory of Hawaii, shall take the following oath or affirmation:

I solemnly swear (or affirm), in the presence of Almighty God, that I will faithfully support the Constitution and laws of the United States, and conscientiously and impartially discharge my duties as a member of the legislature, or as an officer of the government of the Territory of Hawaii (as the case may be).

CASE NOTES

This section did not require those who held licenses as attorneys to take any new oath. It made this obligatory only upon every member of the legislature and all officers of the government of the Territory. In re Davis, 15 Haw. 377 (1904).

Cited in In re Pioneer Mill Co., 33 Haw. 305 (1935).

20. Officers and rules.

That the senate and house of representatives shall each choose its own officers, determine the rules of its own proceedings, not inconsistent with this Act, and keep a journal.

21. Ayes and noes.

That the ayes and noes of the members on any question shall, at the desire of one-fifth of the members present, be entered on the journal.

22. Quorum.

That a majority of the number of members to which each house is entitled shall constitute a quorum of such house for the conduct of ordinary business, of which quorum a majority vote shall suffice; but the final passage of a law in each house shall require the vote of a majority of all the members to which such house is entitled.

23.

That a smaller number than a quorum may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may provide.

24.

That, for the purpose of ascertaining whether there is a quorum present, the chairman shall count the number of members present.

25. Punishment of persons not members.

That each house may punish by fine, or by imprisonment not exceeding thirty days, any person not a member of either house who shall be guilty of disrespect of such house by any disorderly or contemptuous behavior in its presence or that of any committee thereof; or who shall, on account of the exercise of any legislative function, threaten harm to the body or estate of any of the members of such house; or who shall assault, arrest, or detain any witness or other person ordered to attend such house, on his way going to or returning therefrom; or who shall rescue any person arrested by order of such house.

But the person charged with the offense shall be informed, in writing, of the charge made against him, and have an opportunity to present evidence and be heard in his own defense.

CASE NOTES

State senators held subject to garnishment statute. - As state senators were accustomed or entitled to draw their salaries from the clerk of the senate upon a warrant of the auditor, the garnishment statute authorized garnishing each of those officials. The statute was not unconstitutional on the ground that it was against public policy that a percentage of the salaries of legislators, judges and governors, if paid by the State, should be subject to attachment for their debts. See See Kong v. Chillingworth, 19 Haw. 428 (1909).

OPINIONS OF ATTORNEY GENERAL

Powers to punish for disrespect or contempt are limited only to those situations in which the disrespect or contempt is manifested before the house or senate or a committee while in session. Op. Att'y Gen. No. 59-23 (1959).

The powers of the respective houses to punish any person for showing disrespect or contempt are limited to the actions of such disrespectful or contemptuous persons before the house or its committee only and not where the contempt or disrespect is manifested before the other house. Op. Att'y Gen. No. 59-23 (1959).

Rule requiring registration of interest by lobbyists in both houses. - The legislature may adopt by concurrent resolution a single rule which is applicable to both the house and to the senate, requiring the registration or revealing of interest by lobbyists prior to any appearance before either the house or senate or a committee of the house or senate. The sanctions against persons who fail to comply with such a rule are limited to appearances before the house and senate and committees thereof while in session. Neither house may punish an individual for failure to comply with the rule while appearing before the other house or a committee thereof. If it is the desire of the legislature to regulate the activities of lobbyists beyond the scope of a rule adopted by a concurrent resolution, such restrictions must be enacted by either an act or a joint resolution having the force and effect of law in accordance with sections 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

26. Compensation of members.

The members of the legislature shall receive for their services, in addition to mileage to and from general sessions at the rate of 20 cents a mile each way, the sum of $1,000 for each general session, payable in three equal installments, on and after the first, thirtieth, and fiftieth days of such session, to be appropriated by Congress from any moneys in the Treasury not otherwise appropriated, based upon regular estimates submitted through the Secretary of the Interior. The sums authorized to be appropriated from the Federal Treasury for mileage and salary of members for general sessions shall constitute the only sums to be appropriated by the Congress for legislative expenses. Members shall receive from the Treasury of the Territory $500 as compensation for any special session held under the provisions of existing law. The Territory of Hawaii is hereby authorized to enact such laws as it may deem appropriate for the payment from the Treasury of the Territory for compensation and mileage to such members for budget sessions and for the payment of additional compensation to such members for general sessions and special sessions.

[Am May 27, 1910, c 258, § 2, 36 Stat 443; July 9, 1921, c 42, § 301, 42 Stat 115; June 27, 1930, c 647, 46 Stat 823; Aug. 20, 1958, Pub L 85-690, § 4, 72 Stat 684]

Historical note. - Between 1909 and 1930, appropriations by Congress for Hawaiian legislative expenses contained the proviso that legislators should not receive compensation or mileage for any session held under § 54 of the Organic Act.

27. Punishment of members.

That each house may punish its own members for disorderly behavior or neglect of duty, by censure, or by a two-thirds vote suspend or expel a member.

28. Exemption from liability.

That no member of the legislature shall be held to answer before any other tribunal for any words uttered in the exercise of his legislative functions in either house.

29. Exemption from arrest.

That the members of the legislature shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at the sessions of the respective houses, and in going to and returning from the same: Provided, That such privilege as to going and returning shall not cover a period of over ten days each way.

THE SENATE.

30. Senate; Number; Term.

The senate shall be composed of twenty-five members, who shall be elected by the qualified voters of the respective senatorial districts for a term of four years beginning with their election and ending on the day of the second general election after their election: Provided, however, That (1) senators elected at the general election of 1956 shall continue to hold office until the expiration of the terms for which they were elected and shall be deemed to have been elected from the new senatorial district in which they resided at the time of their election; and (2) that at the first session of the legislature subsequent to the general election of 1958, the legislature shall so assign the senators to long or short terms, that as nearly as possible one half of them, including the holdover senators, shall hold office for two years and the remaining senators shall hold office for four years. In the event that the legislature fails to make the necessary assignments of short and long terms for senators as herein required, the Governor shall do so.

[Am Aug. 1, 1956, c 851, § 1, 70 Stat 903]

Cross References. - See § 55 of the Organic Act as to reapportionment of senators and representatives on the basis of the number of citizens as determined by the census.

CASE NOTES

Cited in In re Loucks, 13 Haw. 17 (1900).

31. Vacancies.

That vacancies caused by death, resignation, or otherwise shall be filled for the unexpired term at general or special elections.

32. Senatorial Districts.

For the purpose of representation in the senate, the Territory is divided into the following senatorial districts, namely:

First senatorial district: That portion of the island of Hawaii known as Puna, Hilo and Hamakua;

Second senatorial district: That portion of the island of Hawaii known as Kau, Kona and Kohala;

Third senatorial district: The islands of Maui, Molokai, Lanai and Kahoolawe;

Fourth senatorial district: That portion of the island of Oahu lying east and south of Nuuanu Street and Pali Road and the upper ridge of the Koolau Range from the Nuuanu Pali to Makapuu Point and all other islands not specifically enumerated;

Fifth senatorial district: That portion of the island of Oahu lying west and north of the fourth senatorial district; and

Sixth senatorial district: The islands of Kauai and Niihau.

[Am Aug. 1, 1956, c 851, § 2, 70 Stat 903]

CASE NOTES

Cited in Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956).

33. Apportionment of senators.

The electors in the said senatorial districts shall be entitled to elect senators as follows:

In the first senatorial district, five;

In the second senatorial district, two;

In the third senatorial district, five;

In the fourth senatorial district, five;

In the fifth senatorial district, five;

In the sixth senatorial district, three.

[Am Aug. 1, 1956, c 851, § 3, 70 Stat 903]

Cross References. - On reapportionment of senators after the census, see § 55 of the Organic Act.

CASE NOTES

Cited in Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956).

34. Qualifications of senators.

That in order to be eligible to election as a senator a person shall- Be a citizen of the United States; Have attained the age of thirty years; Have resided in the Hawaiian Islands not less than three years and be qualified to vote for senators in the district from which he is elected.

[Am Sept. 15, 1922, c 315, 42 Stat 844]

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, was not in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Cited in In re Loucks, 13 Haw. 17 (1900).

THE HOUSE OF REPRESENTATIVES.

35. House of Representatives; Number.

The house of representatives shall be composed of fifty-one members, who shall be elected by the qualified voters of the respective representative districts.

[Am Sept. 15, 1922, c 315, 42 Stat 844]

36. Term of office.

That the term of office of the representatives elected at any general or special election shall be until the next general election held thereafter.

CASE NOTES

Cited in Cooke v. Thayer, 22 Haw. 247 (1914).

37. Vacancies.

That vacancies in the office of representative caused by death, resignation, or otherwise shall be filled for the unexpired term at special elections.

38. Representative Districts.

For the purpose of representation in the house of representatives, the Territory is divided into the following representative districts:

First representative district: That portion of the island of Hawaii known as Puna;

Second representative district: That portion of the island of Hawaii known as South Hilo;

Third representative district: That portion of the island of Hawaii known as North Hilo and Hamakua;

Fourth representative district: That portion of the island of Hawaii known as Kau and South Kona and that portion of North Kona, for convenience herein referred to as Keauhou, more particularly described as follows: (1) from a point at the seashore between the lands of Holauloa 1 and 2 and Puapuaa 2 running northeasterly along the boundary of Holauloa 1 and 2 to Puu Laalaau; (2) easterly in a straight line to a point called Naohueleelua being the common corner of the lands of Puuanahulu, Kaohe and Keauhou 2d; (3) southeasterly along the common boundary between Hamakua and North Kona Districts to the summit of Mauna Loa; (4) westerly along the common boundary between Kau and North Kona Districts to the easterly boundary of South Kona District; (5) northerly and westerly along the boundary between North and South Kona Districts to the seashore; and (6) northerly along the seashore to the point of beginning;

Fifth representative district: That portion of the island of Hawaii known as Kohala and that portion of North Kona not included in the fourth representative district;

Sixth representative district: The islands of Molokai and Lanai;

Seventh representative district: The islands of Maui and Kahoolawe;

Eighth representative district: That portion of the island of Oahu known as Koolaupoko and Koolauloa;

Ninth representative district: That portion of the island of Oahu known as Waialua and Wahiawa;

Tenth representative district: That portion of the island of Oahu known as Ewa and Waianae;

Eleventh representative district: That portion of the island of Oahu, for convenience herein referred to as Kalihi, more particularly described as follows: (1) from the intersection of Kalihi and Auiki Streets running westerly along Auiki Street to Mokauea Street; (2) southwesterly along Mokauea Street extension extended to a point on the outer edge of the reef; (3) westerly along the outer edge of the reef to a point on the Moanalua-Halawa boundary; (4) northerly and northeasterly along the Moanalua-Halawa boundary to the top of Koolau Range; (5) southeasterly along the top of Koolau Range to a place called "Puu Lanihuli"; (6) southwesterly along the top of the ridge between the lands of Kalihi, Kapalama and Nuuanu to Kalihi Street; and (7) southwesterly along Kalihi Street to the point of beginning;

Twelfth representative district: That portion of the island of Oahu, for convenience herein referred to as Upper Nuuanu, more particularly described as follows: (1) from the intersection of King and Kalihi Streets running northeasterly along Kalihi Street to the ridge between the lands of Kalihi, Kapalama and Nuuanu; (2) northeasterly along the top of said ridge to a point on the Koolau Range called Puu Lanihuli; (3) easterly along the top of said range to Pali Road at the Nuuanu Pali; (4) southwesterly along Pali Road to Nuuanu Avenue and southwesterly along Nuuanu Avenue to School Street; (5) northwesterly along School Street to the centerline of the Kapalama drainage canal (Waikiki Branch); (6) southwesterly along said canal to the centerline of the main Kapalama drainage canal; (7) southwesterly along said canal to King Street; and (8) northwesterly along King Street to the point of beginning;

Thirteenth representative district: That portion of the island of Oahu for convenience herein referred to as Kapalama, more particularly described as follows: (1) from the junction of the Honolulu Harbor Channel and the reef running westerly along the outer edge of the reef to Mokauea Street extension extended; (2) northeasterly along Mokauea Street extension extended to Sand Island Road; (3) northeasterly along Mokauea Street extension to Auiki Street; (4) easterly along Auiki Street to Kalihi Street; (5) northeasterly along Kalihi Street to King Street; (6) southeasterly along King Street to the center line of the Main Kapalama drainage canal; (7) northerly along said canal to the center line of the Kapalama drainage canal (Waikiki Branch); (8) northeasterly along said canal to School Street; (9) southeasterly along School Street to Nuuanu Avenue; (10) southwesterly along Nuuanu Avenue to the sea, and (11) southwesterly along the middle of Honolulu Harbor and Honolulu Harbor Channel to the point of beginning.

Fourteenth representative district: That portion of the island of Oahu, for convenience herein referred to as Pauoa, more particularly described as follows: (1) from the junction of the Honolulu Harbor Channel and the outer edge of the reef running northeasterly along the middle of Honolulu Harbor Channel and Honolulu Harbor to the intersection of Queen Street and Nuuanu Avenue; (2) northeasterly along Nuuanu Avenue to Pali Road and northeasterly along Pali Road to the top of Koolau Range at the Nuuanu Pali; (3) easterly and southerly along the top of the Koolau Range to a point called Puu Konahuanui; (4) southwesterly along the top of the ridge between the lands of Nuuanu, Pauoa and Manoa to a mountain peak called Puu Ohia or Tantalus; (5) southwesterly along the top of the ridge between the lands of Makiki and Kalawahine to the intersection of Nehoa Street and Lewalani Drive; (6) southerly along Lewalani Drive and Piikoi Street to Wilder Avenue; (7) easterly along Wilder Avenue to Punahou Street; (8) southerly along Punahou Street to King Street; (9) westerly along King Street to Kalakaua Avenue; (10) southerly along Kalakaua Avenue to the center line of the Ala Wai Canal; (11) westerly along said canal and along the line of said canal extended to the outer edge of the reef; and (12) westerly along the outer edge of the reef to the point of beginning.

Fifteenth representative district: That portion of the island of Oahu, for convenience herein referred to as Manoa and Waikiki, more particularly described as follows: (1) from the intersection of Kalakaua Avenue and the center line of the Ala Wai Canal running northerly along Kalakaua Avenue to King Street; (2) easterly along King Street to Punahou Street; (3) northerly along Punahou Street to Wilder Avenue; (4) westerly along Wilder Avenue to Piikoi Street; (5) northerly along Piikoi Street to Lewalani Drive; (6) northerly along Lewalani Drive to Nehoa Street; (7) northeasterly along the top of the ridge between the lands of Makiki and Kalawahine to a mountain peak called Puu Ohia or Tantalus; (8) northeasterly along the top of the ridge between the lands of Pauoa, Manoa and Nuuanu to a point on the Koolau Range called Puu Konahuanui; (9) southeasterly along the top of said range to a place called Mountain Olympus; (10) southwesterly along the top of Waahila Ridge to the top edge of Palolo Valley; (11) southwesterly along the top edge of said valley to the forest reserve boundary; (12) southwesterly along the southeasterly boundary of Saint Louis Heights tract, series 2 (file plan 464) to the southerly boundary of said tract one hundred feet southeasterly from Alencastre Street; (13) southwesterly parallel to and one hundred feet from Alencastre Street and Saint Louis Drive to Waialae Avenue; (14) westerly along Waialae Avenue to Kapahulu Avenue extended; (15) southerly across Waialae Avenue and along Kapahulu Avenue to Kalakaua Avenue; (16) westerly along Kapahulu Avenue extended to the outer edge of the reef; (17) northwesterly along the outer edge of the reef to a point on the line extended of the center line of the Ala Wai Canal; and (18) easterly along said line to the point of beginning;

Sixteenth representative district: That portion of the island of Oahu, for convenience herein referred to as Kaimuki and Kapahulu, more particularly described as follows: (1) from a point at the seacoast at a place called Black Point running westerly along the seacoast to Kapahulu Avenue extended to the sea; (2) easterly across Kalakaua Avenue and easterly and northerly along Kapahulu Avenue to Waialae Avenue; (3) easterly along Waialae Avenue to a point one hundred feet easterly of Saint Louis Drive; (4) northeasterly across Waialae Avenue then parallel to and one hundred feet from Saint Louis Drive and Alencastre Street to the southerly boundary of Saint Louis Heights tract, series 2 (file plan numbered 464); (5) northeasterly along the southeasterly boundary of said tract to the forest reserve boundary; (6) northeasterly along the top ridge of Palolo Valley to the top of Waahila Ridge; (7) northeasterly along the top of Waahila Ridge to a point on Koolau Range called Mount Olympus; (8) easterly along the top of the Koolau Range to the top of the ridge between the lands of Waialae Nui and Palolo; (9) southwesterly along the top of said ridge to a place called Kalepeamoa; (10) southwesterly along Mauumae Ridge to Sierra Drive; (11) southwesterly along Sierra Drive to Waialae Avenue; (12) easterly along Waialae Avenue to Thirteenth Avenue; (13) southwesterly along Thirteenth Avenue and Ocean View Drive to Kilauea Avenue; (14) westerly along Kilauea Avenue to Makapuu Avenue; (15) southwesterly along Makapuu Avenue to Diamond Head Road; and (16) southeasterly along Diamond Head Road to the military road and along the military road extended to the point of beginning;

Seventeenth representative district: That portion of the island of Oahu not included in any other representative district on the island of Oahu, together with all other islands not included in any other representative district;

Eighteenth representative district: The islands of Kauai and Niihau. Wherever a roadway or intersection of one or more roadways is designated as a boundary in any of the above descriptions, the centerline of such roadway or intersection is intended as such boundary.

[Am Aug. 1, 1956, c 851, § 5, 70 Stat 904]

CASE NOTES

Cited in Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956).

39. Apportionment of Representatives.

The electors in said representative districts shall be entitled to elect representatives as follows, prior to the first reapportionment: First, one; second, four; third, one; fourth, one; fifth, one; sixth, one; seventh, five; eighth, two; ninth, two; tenth, two; eleventh, three; twelfth, three; thirteenth, three; fourteenth, five; fifteenth, six; sixteenth, four; seventeenth, three; eighteenth, four.

[Am Aug. 1, 1956, c 851, § 6, 70 Stat 906]

Cross References. - As to reapportionment of representatives after the census, see § 55 of the Organic Act.

CASE NOTES

Cited in Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956).

40. Qualifications of representatives.

That in order to be eligible to be a member of the house of representatives a person shall, at the time of election -

Have attained the age of twenty-five years;

Be a citizen of the United States;

Have resided in the Hawaiian Islands not less than three years and shall be qualified to vote for representatives in the district from which he is elected.

[Am Sept. 15, 1922, c 315, 42 Stat 844]

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, was not in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Cited in In re Loucks, 13 Haw. 17 (1900); Harris v. Cooper, 14 Haw. 145 (1902).

LEGISLATION.

41. Sessions of the legislature.

(a) Regular sessions of the legislature shall be held in odd number years and additional regular sessions may, if so provided by act of the legislature be held in even number years. All such sessions shall commence at 10 o'clock antemeridian, on the third Wednesday in February. Regular sessions in odd number years shall be known as general sessions and those in even number years shall be known as budget sessions.

(b) At budget sessions the legislature shall be limited to the consideration and enactment of (1) the general appropriation bill for the succeeding fiscal year, (2) bills to authorize proposed capital expenditures, (3) revenue bills necessary therefor, (4) bills calling elections, (5) proposed constitutional amendments, (6) bills to provide for the expenses of such session, and (7) matters relating to the impeachment or removal of officers.

[Am Aug. 20, 1958, Pub L 85-690, § 1, 72 Stat 684]

42.

That neither house shall adjourn during any session for more than three days, or sine die, without the consent of the other.

43.

(a) General sessions shall be limited to a period of sixty days and budget sessions and special sessions to a period of thirty days, but the Governor may extend any session for not more than thirty days. Sundays and holidays shall be excluded in computing the number of days in any session.

(b) The Governor may convene the legislature, or the Senate alone, in special session. All sessions shall be held at the capital of the Territory. In case the capital shall be unsafe, the Governor may direct that any session shall be held at some other place in the Territory of Hawaii.

[Am Aug. 20, 1958, Pub L 85-690, § 2, 72 Stat 684]

44. Enacting clause - English language.

That the enacting clause of all laws be, "Be it enacted by the legislature of the Territory of Hawaii." All legislative proceedings shall be conducted in the English language.

OPINIONS OF ATTORNEY GENERAL

Rule requiring registration of interest by lobbyists in both houses. - The legislature may adopt by concurrent resolution a single rule which is applicable to both the house and to the senate, requiring the registration or revealing of interest by lobbyists prior to any appearance before either the house or senate or a committee of the house or senate. The sanctions against persons who fail to comply with such a rule are limited to appearances before the house and senate and committees thereof while in session. Neither house may punish an individual for failure to comply with the rule while appearing before the other house or a committee thereof. If it is the desire of the legislature to regulate the activities of lobbyists beyond the scope of a rule adopted by a concurrent resolution, such restrictions must be enacted by either an act or a joint resolution having the force and effect of law in accordance with §§ 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

45. Title of laws.

That each law shall embrace but one subject, which shall be expressed in its title.

CASE NOTES

Section is mandatory. - This section has the force and effect of a constitutional provision which is mandatory. Territory v. Kua, 22 Haw. 307 (1914).

This section is mandatory, and the disregarding of it by the legislature makes its act nugatory. In re Goddard, 35 Haw. 203 (1939).

But it should be liberally construed, and an act of the legislature should not be held void on the ground that it conflicts with this provision, except in a clear case. Dole v. Cooper, 15 Haw. 297 (1903).

This section should be liberally construed. Ahmi v. Buckle, 17 Haw. 200 (1905).

Title fixes bounds of act. - The title of an act may be broader than the act without violating this provision. However, the title, if restricted, must be the standard to determine the scope of the act, and the act cannot be broader than its title. In other words, the title fixes the bounds of the act, beyond which the legislature may not go. Territory v. Kua, 22 Haw. 307 (1914).

Reason for simple title. - The well-known reason for requiring a simple and explanatory title is in order that lawmakers may not be misled in passing bills containing subjects of which they are not reasonably apprised by the title. Territory of Haw. v. Jacintho Miguel, 18 Haw. 402 (1907), appeal dismissed, 214 U.S. 531, 29 S. Ct. 699, 53 L. Ed. 1070 (1909).

Amendatory act. - Where the title to an act amending a certain section of a certain chapter of the Revised Laws expresses one branch or phase of the subject treated in such chapter, the amendatory act is thereby restricted; and a proviso therein relating to a subject separate and distinct from that expressed in its title is void. Territory v. Kua, 22 Haw. 307 (1914).

Title to Act 99, Laws 1913, reading "An Act to Amend Section 1323 of the Revised Laws as Amended by Act 151 of the Laws of 1909, Relating to the Issuance of Licenses," where the body of the act contained a proviso relating to the payment of personal and property taxes, was misleading insofar as the matter contained in said proviso was concerned, the same not being related to, nor allied with, the subject expressed in the title. Territory v. Kua, 22 Haw. 307 (1914).

Code revision. - Short act, by which the legislature enacted a code revision as a whole by reference, did not violate this section and § 46 of the Organic Act. In re Pong, 17 Haw. 566 (1906).

Parts of act should have natural connection. - It is sufficient if the various parts of an act have a natural connection, are fairly well embraced in one subject, though somewhat general, and are expressed in the title. Dole v. Cooper, 15 Haw. 297 (1903).

Act vitiated by void portion. - So much of Act 31, Laws of 1903, known as the County Act, as provided new features in territorial taxation not incidental to county organization or government, was void under the provision of this section "that each law shall embrace but one subject, which shall be expressed in its title," and said void portion was such an essential feature as to vitiate the whole act. Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904).

Cited in In re Contested Election, 15 Haw. 323 (1903); Castle v. Atkinson, 16 Haw. 769 (1905); Schoening v. Miner, 22 Haw. 196 (1914); Waiakea Mill Co. v. Vierra, 35 Haw. 550 (1940); Territory of Haw. v. Alford, 39 Haw. 460 (1952); Jensen v. Turner, 40 Haw. 604 (1954); Costa ex rel. Hanvey v. Flintkote Co., 42 Haw. 518 (1958); Von Holt v. Izumo Taisha Kyo Mission, 42 Haw. 671 (1958); Johnson & Johnson, Inc. v. G.E.M. Sundries Co., 43 Haw. 103 (1959); State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964); Gallas v. Sanchez, 48 Haw. 370 (1965); Schwab v. Ariyoshi, 58 Haw. 25, 564 P.2d 135 (1977).

OPINIONS OF ATTORNEY GENERAL

Concurrent resolution. - The legislature may adopt by concurrent resolution a single rule which is applicable to both the house and to the senate, requiring the registration or revealing of interest by lobbyists prior to any appearance before either the house or senate or a committee of the house or senate. The sanctions against persons who fail to comply with such a rule are limited to appearances before the house and senate and committees thereof while in session. Neither house may punish an individual for failure to comply with the rule while appearing before the other house or a committee thereof. If it is the desire of the legislature to regulate the activities of lobbyists beyond the scope of a rule adopted by a concurrent resolution, such restrictions must be enacted by either an act or a joint resolution having the force and effect of law in accordance with §§ 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

46. Reading of bills.

That a bill in order to become a law shall, except as herein provided, pass three readings in each house, on separate days, the final passage of which in each house shall be by a majority vote of all the members to which such house is entitled, taken by ayes and noes and entered upon its journal.

CASE NOTES

Code revision. - Short act, by which the legislature enacted a code revision as a whole by reference, did not violate this section and § 45 of the Organic Act. In re Pong, 17 Haw. 566 (1906).

Cited in Dole v. Cooper, 15 Haw. 297 (1903); Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904); Smithies v. Conkling, 20 Haw. 600 (1911).

OPINIONS OF ATTORNEY GENERAL

47. Certification of bills from one house to the other.

That every bill when passed by the house in which it originated, or in which amendments thereto shall have originated, shall immediately be certified by the presiding officer and clerk and sent to the other house for consideration.

OPINIONS OF ATTORNEY GENERAL

48. Signing bills.

That, except as herein provided, all bills passed by the legislature shall, in order to be valid, be signed by the governor.

CASE NOTES

Cited in In re Carter, 16 Haw. 242 (1904).

OPINIONS OF ATTORNEY GENERAL

VETO.

49. Veto of Governor.

That every bill which shall have passed the legislature shall be certified by the presiding officers and clerks of both houses, and shall thereupon be presented to the governor. If he approves it, he shall sign it, and it shall become a law. If the governor does not approve such bill, he may return it, with his objections, to the legislature. He may veto any specific item or items in any bill which appropriates money for specific purposes; but shall veto other bills, if at all, only as a whole.

CASE NOTES

Cited in Robinson v. Baldwin, 19 Haw. 9 (1908).

50. Procedure upon receipt of veto.

That upon the receipt of a veto message from the governor each house of the legislature shall enter the same at large upon its journal and proceed to reconsider such bill, or part of a bill, and again vote upon it by ayes and noes, which shall be entered upon its journal.

If after such reconsideration such bill, or part of a bill, shall be approved by a two-thirds vote of all the members to which each house is entitled, it shall thereby become law.

51. Failure to sign or veto.

That if the governor neither signs nor vetoes a bill within ten days after it is delivered to him it shall become a law without his signature, unless the legislature adjourns sine die prior to the expiration of such ten days.

If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the legislature by their adjournment prevents its return, in which case it shall not be a law.

Historical note. - The first paragraph of this section was taken, by the commission which drafted this act, from the Hawaiian Const. of 1894 (§ 69), and the second paragraph was added by Congress, from the federal Constitution, Art. 1, § 7. The latter giving twelve days, including Sundays, in which to return a bill, probably controls the former, and apparently this was recognized by the legislature in the case of L. 1911, c. 143. In several instances bills have been signed by the governor after the adjournment of the legislature, but within ten days after their passage.

CASE NOTES

Pocket veto. - A pocket veto occurs in the following situation: (a) the bill is passed by the legislature at the regular session; (b) it is delivered to the governor after the legislature adjourns the regular session sine die; (3) while the governor has it under consideration, the legislature, composed of the same members as in the regular session, is convened in special session; (4) on the tenth day (Sundays excepted) after its delivery to the governor, the legislature is in session; (5) it is not signed by the governor nor is it returned by him to the legislature with his objections. The legislature, by adjournment sine die of the regular session, prevents the governor from returning the bill with his objections to the session that passed it. Hawaiian Airlines v. Public Utils. Comm'n, 43 Haw. 216 (1959).

APPROPRIATIONS.

52.

That appropriations, except as herein otherwise provided, shall be made by the legislature.

[Am May 27, 1910 c 258, § 3, 36 Stat 444]

CASE NOTES

Cited in In re Boyd, 15 Haw. 361 (1903); In re Hawaiian Star Newspaper Ass'n, 15 Haw. 532 (1904).

OPINIONS OF ATTORNEY GENERAL

National guard facilities. - As to the propriety of participation by Hawaii in a joint utilization project with the federal government for use of national guard facilities and legislative authority to effectuate such participation, see Op. Att'y Gen. No. 59-107 (1959).

53.

The Governor shall submit to the legislature, at each regular session, estimates for appropriations for the succeeding biennial period or, if provision be made in accordance with section 41 of this Act for additional regular sessions of the legislature, for the succeeding fiscal year.

[Am Aug. 20, 1958, Pub L 85-690, § 3, 72 Stat 684]

CASE NOTES

Cited in In re Hawaiian Star Newspaper Ass'n, 15 Haw. 532 (1904); In re Boyd, 15 Haw. 361 (1903).

54.

That in case of failure of the legislature to pass appropriation bills providing for payments of the necessary current expenses of carrying on the government and meeting its legal obligations as the same are provided for by the then existing laws, the governor shall, upon the adjournment of the legislature, call it in extra session for the consideration of appropriation bills, and until the legislature shall have acted the treasurer may, with the advice of the governor, make such payments, for which purpose the sums appropriated in the last appropriation bill shall be deemed to have been reappropriated. And all legislative and other appropriations made prior to the date when this Act shall take effect, shall be available to the government of the Territory of Hawaii.

CASE NOTES

"Necessary current expenses." - The legislature could include in an appropriation bill passed at an extra session called under the provisions of this section an item which was not for a "necessary current expense of carrying on the government," provided the matter covered by the appropriation was one for which an appropriation could rightfully be made. In re Queen's Hosp., 15 Haw. 514 (1904).

"Last appropriation bill." - Where the legislature failed at its regular session in 1903 to provide for the necessary expenses of the government for the succeeding biennial period, and in its extra session immediately afterwards it passed complete appropriation bills for the first six months of the biennial period, and bills providing for a portion of the necessary expenses of the last 18 months, but failed to provide for perhaps a half of the necessary expenses for those 18 months on the supposition that those expenses would be borne by counties under an act which turned out to be void, the expenses so unprovided for could be paid out of the last appropriation bills by the treasurer with the advice of the governor under this section. "The last appropriation bills," within the meaning of this section, were those of 1901 and not the six-months bills of 1903. In re Hawaiian Star Newspaper Ass'n, 15 Haw. 532 (1904).

Cited in In re Boyd, 15 Haw. 361 (1903); In re Queen's Hosp., 15 Haw. 663 (1904).

LEGISLATIVE POWER.

55.

That the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable. The legislature shall not grant to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise without the approval of Congress; nor shall it grant private charters, but it may by general act permit persons to associate themselves together as bodies corporate for manufacturing, agriculture, and other industrial pursuits, and for conducting the business of insurance, savings banks, banks of discount and deposit (but not of issue), loan, trust, and guaranty associations, for the establishment and conduct of cemeteries, and for the construction and operation of railroads, wagon roads, vessels, and irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any other benevolent, charitable, or scientific association. No divorce shall be granted by the legislature, nor shall any divorce be granted by the courts of the Territory unless the applicant therefor shall have resided in the Territory for two years next preceding the application, but this provision shall not affect any action pending when this Act takes effect; nor shall any lottery or sale of lottery tickets be allowed; nor shall spirituous or intoxicating liquors be sold except under such regulations and restrictions as the Territorial legislature shall provide; nor shall any public money be appropriated for the support or benefit of any sectarian, denominational, or private school, or any school not under the exclusive control of the government; nor shall the government of the Territory of Hawaii, or any political or municipal corporation or subdivision of the Territory, make any subscription to the capital stock of any incorporated company, or in any manner lend its credit for the use thereof; nor shall any debt be authorized to be contracted by or on behalf of the Territory, or any political or municipal corporation or subdivision thereof, except to pay the interest upon the existing indebtedness, to suppress insurrection, or to provide for the common defense, except that in addition to any indebtedness created for such purposes the legislature may authorize loans by the Territory, or any such subdivision thereof, for the erection of penal, charitable, and educational institutions, and for public buildings, wharves, roads, harbors, and other public improvements, but the total indebtedness of the Territory shall not at any time be extended beyond 10 per centum of the assessed value of the property in the Territory and the total indebtedness of any such subdivision shall not at any time be extended beyond 5 per centum of the assessed value of property in the subdivision, as shown by the then latest assessments for taxation, whether such assessments are made in either case by the Territory or subdivision, but nothing in this Act shall prevent the refunding of any indebtedness at any time; nor shall any such loan be made upon the credit of the public domain or any part thereof; nor shall any bond or other instrument of any such indebtedness be issued unless made payable in not more than thirty years from the date of the issue thereof; nor shall any issue of bonds or other instruments of any such indebtedness be made after July 1, 1926, other than such bonds or other instruments of indebtedness in serial form maturing in substantially equal annual instalments, the first instalment to mature not later than five years from the date of the issue of such series, and the last instalment not later than thirty years from the date of such issue; nor shall any such bond or indebtedness be issued or incurred until approved by the President of the United States: Provided, That the legislature may by general act provide for the condemnation of property for public uses, including the condemnation of rights of way for the transmission of water for irrigation and other purposes.

On or before June 1 of the year 1959, and of each tenth year thereafter, the governor shall reapportion the members of the house of representatives in the following manner: The total number of representatives shall first be reapportioned among four basic areas; namely, (1) the island of Hawaii, (2) the islands of Maui, Molokai, Lanai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, on the basis of the number of voters registered at the last preceding general election in each of such basic areas and computed by the method known as the method of equal proportions, no basic area to receive less than one member. Upon the determination of the total number of representatives to which each basic area is entitled, such total shall be reapportioned among the one or more representative districts within each basic area on the basis of the number of voters registered at the last preceding general election within each of such representative districts and computed by the method known as the method of equal proportions no representative district to receive less than one member. Upon any reapportionment, should the total number of voters registered in any representative district be less than one-half of the quotient obtained by dividing the total number of voters registered in the Territory by the total number of members to which the house is entitled, then, as part of such reapportionment, the basic area within which such representative district lies shall be redistricted by the governor in such manner that the total number of voters registered in each new representative district therein shall be more than one-half of such quotient.

The governor shall thereupon issue a proclamation showing the results of such reapportionment, and such reapportionment shall be effective for the election of members to such house for the next five succeeding legislatures.

Original jurisdiction is hereby vested in the supreme court of the Territory to be exercised on the application of any registered voter, made within thirty days following the date specified above, to compel, by mandamus or otherwise, the governor to perform the above duty; and made within thirty days following the date of such proclamation, to compel, by mandamus or otherwise, the correction of any error made in such reapportionment.

[Am May 27, 1910, c 258, § 4, 36 Stat 444; July 9, 1921, c 42, § 302, 42 Stat 116; June 9, 1926, c 512, §§ 1, 2, 44 Stat 710; Aug. 1, 1956, c 851, § 7, 70 Stat 907; Aug. 20, 1958, Pub L 85-690, § 3, 72 Stat 684]

Historical note. - Congress, from time to time, has ratified territorial bond acts and has authorized particular issues. For the years 1933 to 1942, inclusive, see the Acts of July 15, 1935, August 3, 1935, May 28, 1937, July 10, 1937 (four Acts), May 13, 1938, August 7, 1939, November 21, 1941, and May 5, 1942, cited in the Chronological Note of Acts Affecting Hawaii, RLH 1955, page 9. See also 48 U.S.C. § 562a to j, and the list of loan fund acts in the appendix, note 6, RLH 1955, p. 1731.

As to other territories, compare this § 55 with Rev. Sts., §§ 1851, 1889; 23 Stat. 348; 24 Stat. 170; 25 Stat. 336; 29 Stat. 136, covering similar subjects in relation to territories in general, all of which may have been by implication inapplicable to Hawaii before the amendment of § 5 of the Organic Act, and were made inapplicable expressly by that amendment. Pursuant to section 73(c) of the Organic Act, certain land laws are not subject to repeal or amendment by the legislature without the approval of Congress.

By the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdiction except for certain purposes therein stated.

Congress provided by Joint Resolution of April 26, 1910 (36 Stat. 878) for a special election on prohibition, at which election the vote was against prohibition. See also the Act of May 23, 1918, c. 84, 40 Stat. 560, which was followed by the National Prohibition Act, made applicable to Hawaii by § 3 of the Act of Nov. 23, 1921, c. 134, 42 Stat. 223. All federal liquor prohibition laws in effect in Hawaii were repealed by the Act of Mar. 26, 1934, c. 88, 48 Stat. 467.

As to military and naval reservations, see the note to § 2 of the Organic Act. As to taxation, see the following Acts of general application throughout the United States: Act of June 16, 1936, known as the Hayden-Cartwright Act, c. 582, § 10, 49 Stat. 1518, 1521, as amended October 9, 1940, c. 787, § 7, 54 Stat. 1059, 1060; Act of October 9, 1940, known as the Buck Act, c. 787, 54 Stat. 1059.

As to juries and jury trials, see § 83 of the Organic Act.

As to application of the Constitution, see § 5 of the Organic Act.

As to ratification of franchises granted between annexation and the establishment of territorial government, see § 73 of the Organic Act. For franchises granted by the territorial legislature and approved, with amendments, by Congress, see note 3 in Appendix of RLH 1945, page 1676, and list of acts in Chronological Note of Acts Affecting Hawaii in RLH 1955, page 9.

CASE NOTES

I. General Consideration.
II. Taxation.
III. Appropriations.
IV. Divorce.
V. Lotteries.
VI. Bonds.
VII. Eminent Domain.
VIII. Reapportionment.

I. GENERAL CONSIDERATION.

Organic Act is fundamental law of Territory. - The Organic Act passed by Congress for the government of the Territory is the fundamental law of the Territory of Hawaii; and by the provisions of that Act the legislative power of the Territory is extended to all rightful subjects of the legislation not inconsistent with the Constitution and laws of the United States, locally applicable. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

Legislative authority of Congress. - Congress has plenary legislative authority over the people and government of the territories. Inter-Island Steam Nav. Co. v. Hawaii, 305 U.S. 306, 59 S. Ct. 202, 83 L. Ed. 189 (1938).

Act of Congress will not be deemed to supersede territorial law unless that intention is clear. Inter-Island Steam Nav. Co. v. Hawaii, 305 U.S. 306, 59 S. Ct. 202, 83 L. Ed. 189 (1938).

Intervention by federal court where powers used in violation of U.S. Constitution. - It is only when the powers of this section are used or not used so as to violate the Constitution of the United States that a federal court may intervene. Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956), rev'd on other grounds, 256 F.2d 728 (9th Cir. 1958).

Statute in conflict with executive agreement of president violated section. - A statute of the Territory of Hawaii which conflicted with an executive agreement made by the President violated this section. Territory v. Ho, 41 Haw. 565 (1957).

Laws passed in exercise of police powers. - Laws passed by the legislature in the exercise of its police powers are "rightful subjects of legislation" within the meaning of that term as employed in this section. Auto Rental Co. v. Lee, 35 Haw. 77 (1939).

Law-making power not delegated by provision that act took effect on approval of President. - A section of an act which authorized bonds, providing for its taking effect upon the date of its approval by the President of the United States, was not intended to require the President's approval in order that the act should become law, and therefore was not an attempted delegation of law-making power, but was intended merely to fix the time when the law would go into operation, or else it referred to the approval required by this section. Robinson v. Baldwin, 19 Haw. 9 (1908).

Hawaiian Fair Trade Act violated this section. - Hawaiian Fair Trade Act held in violation of this section as being inconsistent with section 3 of the Sherman Act. Sunbeam Corp. v. Gem Jewelry Co., 157 F. Supp. 838 (D. Haw. 1957).

Unfair Practices Act is a "rightful subject of legislation" within the provisions of this section. Johnson & Johnson, Inc. v. G.E.M. Sundries Co., 43 Haw. 103 (1959).

Former fishing license statute held valid under this section. - Former Act 96, S.L. 1907, requiring a license fee of $5.00 for a fishing boat with a beam of 30 inches or more, was not void under § 95, Organic Act, repealing the laws of the Republic of Hawaii, which conferred exclusive fishing rights and declaring that the fisheries in the sea waters of the Territory not included in any fish pond or artificial enclosure would be free to all citizens of the United States. Congress did not intend that the business of fishing for profit in the sea waters of the Territory should be free from police regulation or taken out of the taxing power of the Territory, the object being to do away with exclusive private rights of fishery in those waters. Nor was the act void as discriminatory class legislation or for unreasonably classifying boats required to be licensed or for prohibiting a useful occupation or denying to the defendant equal and uniform protection of the law, or for conflicting with this section or with the Fourteenth Amendment of the United States Constitution. Territory of Haw. v. Matsubara, 19 Haw. 641 (1909).

Regulation of fishing season for amaama. - A statute having for its object the protection of amaama, a valuable food fish, and providing to that end a reasonable closed season, is a legitimate exercise of the police power, and within the grant of legislative power contained in this section, and does not conflict in any way with the declaration contained in § 95. Territory v. Hoy Chong, 21 Haw. 39 (1912).

Waiver of unanimity of verdict requirement. - Unanimity of verdicts is essential under the provisions of the Organic Act, but it may be waived, and it is waived by a request for an instruction, which is given, that a verdict may be rendered by nine jurors. Pringle v. Hilo Mercantile Co., 13 Haw. 705 (1901).

Workers' compensation. - Provision for compensation to injured workers or their dependents occasioned by an accident arising out of or in the scope of the workers' employment is a rightful subject of legislation. Campsie v. Catton, Neill & Co., 26 Haw. 737 (1923).

Domicile of military personnel. - An officer or enlisted man in the United States Army or Navy, when permitted to establish a home outside of his military or naval station, may thus acquire a domicile, but cannot acquire a domicile when he is required to reside in quarters furnished by the government on a military or naval station; the fact that he cannot stay in the new home, if called away to perform his duties, does not prevent his forming the animus manendi and acquiring a domicile there. West v. West, 35 Haw. 461 (1940).

Garnishment of public officials. - As state senators are accustomed or entitled to draw their salaries from the clerk of the senate upon a warrant of the auditor, the garnishment statute authorizes garnishing each of those officials. The statute is not unconstitutional on the ground that it is against public policy that a percentage of the salaries of legislators, judges and governors, if paid by the Territory, should be subject to attachment for their debts. See See Kong v. Chillingworth, 19 Haw. 428 (1909).

Cited in Coffield v. Territory of Haw., 13 Haw. 478 (1901); Robertson v. Pratt, 13 Haw. 590 (1901); Territory of Haw. v. Pacific Club, 16 Haw. 507 (1905); Castle v. Secretary of Territory, 16 Haw. 769 (1905); Lowrey v. Territory of Haw., 17 Haw. 285 (1906); Territory of Haw. v. Jacintho Miguel, 18 Haw. 402 (1907); Robinson v. Baldwin, 19 Haw. 9 (1908); Lowrey v. Territory of Haw., 19 Haw. 123 (1908); Emmeluth v. Board of Supvrs., 19 Haw. 171 (1908); Lowrey v. Hawaii, 215 U.S. 554, 30 S. Ct. 209, 54 L. Ed. 325 (1910); In re Craig, 20 Haw. 483 (1911); In re Cummins, 20 Haw. 518 (1911); Territory of Haw. v. Dondero, 21 Haw. 19 (1912); Brown v. Campbell, 21 Haw. 314 (1912); Toyota v. Hawaii, 226 U.S. 184, 33 S. Ct. 47, 57 L. Ed. 180 (1912); Cassels v. Wilder, 23 Haw. 61 (1915); Territory of Haw. v. McCandless, 24 Haw. 485 (1918); Holt v. Conkling, 25 Haw. 335 (1920); Territory of Haw. v. Braly, 29 Haw. 7 (1926); Territory of Haw. ex rel. Pub. Utils. Comm'n v. Inter-Island Steam Nav. Co., 32 Haw. 127 (1931); Kitagawa v. Shipman, 54 F.2d 313 (9th Cir. 1931); Territory of Haw. v. Reyes, 33 Haw. 180 (1934); E.E. Black, Ltd. v. Conkling, 33 Haw. 278 (1935); Territory of Haw. v. Kraft, 33 Haw. 397 (1935); Wong v. Public Utils. Comm'n, 33 Haw. 813 (1936); Territory of Haw. ex rel. Pub. Utils. Comm'n v. Fung, 34 Haw. 52 (1936); In re Yerian, 35 Haw. 855 (1941); McHenry v. McHenry, 37 Haw. 223 (1945); Brodhead v. Borthwick, 37 Haw. 314 (1946); Anderson v. Anderson, 38 Haw. 261 (1948); Smith v. United States, 113 F. Supp. 702 (D. Haw. 1953); Jensen v. Turner, 40 Haw. 604 (1954); Blackburn v. Blackburn, 41 Haw. 37 (1954); Fasi v. King, 41 Haw. 461 (1956); Territory of Haw. v. Shinohara, 42 Haw. 29 (1957); Abe v. Dyer, 256 F.2d 728 (9th Cir. 1958); Davis v. Quinn, 43 Haw. 261 (1959); State v. Tin Yan, 44 Haw. 370, 355 P.2d 25 (1960); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

II. TAXATION.

Power to tax included in "all rightful subjects of taxation." - The provision that the legislative power shall extend to "all rightful subjects of legislation" includes full and comprehensive power to legislate in the matter of taxation. W. C. Peacock & Co. v. Pratt, 121 F. 772 (9th Cir. 1903).

The power to authorize the assessment and collection of taxes is not only a rightful subject of legislation, but it is an indispensable power incident to all forms of civilized government. Keola v. Parker, 21 Haw. 597 (1913).

The term "all rightful subjects of legislation," as employed in this section, is all-inclusive, and no implication arises from the absence of a specific grant of the legislative power to tax. Borthwick v. Veatch, 38 Haw. 188 (1948).

Tax and police powers. - By this section the legislature of this Territory was vested with the power of taxation with all the completeness and effectiveness with which that power is vested in and exercised by the legislature of any of the states, and also the right to legislate in exercise of the police power. In re Kalana, 22 Haw. 96 (1914).

Scope of taxing power. - By this section Congress vested in the legislature of Hawaii the full taxing power which had theretofore existed in Congress over that Territory. Yerian v. Territory of Haw., 130 F.2d 786 (9th Cir. 1942).

Congress intended to authorize legislature to pass tax laws. - It was the intention of Congress by the Organic Act to authorize the legislature to pass tax laws. Tomikawa v. Gama, 14 Haw. 431 (1902).

Power to tax for local purposes. - A territorial legislature has all the powers of a state legislature, except as limited by the Organic Act of the Territory, the Constitution of the United States and the Acts of Congress, and these powers include the power to tax for local purposes, which is inherent in all governments. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

Collection of taxes not enjoined if adequate remedy at law exists. - The legislature of Hawaii has the general power to legislate upon all questions of taxation in relation to providing a local system of revenue to carry on the government of the Territory of Hawaii, the only limitation being that such legislation shall not be inconsistent with the Constitution and laws of the United States, locally applicable, and where said legislature has enacted a local income tax law, the United States District Court will not interfere by injunction to restrain the collection of taxes assessed under the law, where complainants have an adequate remedy at law. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

III. APPROPRIATIONS.

Appropriation for payment of claim based on moral obligation. - It is within the power of the legislature to appropriate money for the payment of a claim which, while not cognizable or enforceable in a court of law, is founded upon moral and honorable obligations and upon principles of right and justice. In re Mott-Smith, 29 Haw. 343 (1926).

A statute providing for the discharge of a moral obligation by means of an appropriation of public funds is unquestionably "rightful legislation" within the meaning of the Organic Act. Smithies v. Conkling, 20 Haw. 600, modified, 20 Haw. 675 (1911).

The prohibition against grants of special or exclusive privilege does not apply to legislative acts authorizing payment of a private claim against the Territory, based upon a moral obligation. Koike v. Board of Water Supply, 44 Haw. 100, 352 P.2d 835, rehearing denied, 44 Haw. 146, 352 P.2d 846 (1960).

Appropriation to discharge moral and equitable obligation of Territory. - It is proper for the territorial legislature to appropriate any moneys in the public treasury to discharge the moral and equitable obligations of the Territory. But in the absence of a legal obligation to make such a payment, there must be at least a moral or equitable obligation to do so; otherwise the payment would not be for a public purpose but would be a mere gratuity and beyond the power of the legislature to make. In re Tavares, 26 Haw. 101 (1921).

Appropriations from City of Honolulu general fund to pay certain moral obligations. - Act authorizing specific appropriations from the general fund of the City of Honolulu for the particular object of paying certain moral obligations of that municipality was an exercise of the legislative power of the Territory upon "rightful subjects of legislation" within the meaning of this section. James W. Glover, Ltd. v. Fong, 39 Haw. 308, appeal dismissed, 197 F.2d 710 (9th Cir. 1952).

Appropriation for refund of purchase price of public lands sold at fair price was improper. - The appropriation of a sum of money by the legislature for the avowed purpose of refunding a portion of the purchase price of public lands which had been sold at a price fairly fixed by the executive department having authority to fix it was clearly an attempt by the legislature to repudiate, overturn and set aside the lawful act of a coordinate branch of the government and to substitute its judgment for that of the department upon which the law cast the duty of exercising its judgment. The act constituted an attempt to divert public funds to private use without any moral or equitable obligation or other consideration of public policy to support it. It was not therefore a rightful subject of legislation. In re Tavares, 26 Haw. 101 (1921).

Appropriation for payment to contractor to cover unforeseeable loss was proper. - The appropriation of money by Act 204, L. 1923, to be paid to a contractor by way of reimbursement for losses sustained in consequence of a change of conditions at the site (the ocean bottom), which was not and could not have been foreseen, was a rightful subject of legislation and within the power of the legislature to make. In re Mott-Smith, 29 Haw. 343 (1926).

IV. DIVORCE.

Residence requirements for divorce suit held mandatory and jurisdictional. - The provisions of the Organic Act and the Hawaii statute as to the residence of the plaintiff preceding the commencement of a suit for divorce were mandatory and jurisdictional, and a judge was without authority to grant a decree in the absence of proof of domicile for the necessary length of time. Zumwalt v. Zumwalt, 23 Haw. 376 (1916).

V. LOTTERIES.

Lotteries designated mala prohibita. - The Organic Act constitutes an express limitation upon our legislative power and designates lotteries mala prohibita. Territory v. Sur., 39 Haw. 332 (1952).

VI. BONDS.

Issuance of bonds for improvement of public nature was not lending of credit of municipality. - The issuance of bonds by the City and County of Honolulu for the purpose of constructing an improvement of a public nature was not the lending of the credit of the municipality, as that term is used in this section, although the improvement could have been of special benefit to a limited number residing within the improvement district. E.E. Black, Ltd. v. Conkling, 33 Haw. 731 (1936).

Bonds financed by assessments on benefited property did not create municipal indebtedness. - When the City and County of Honolulu issued bonds for street improvements, the cost of which improvements was to be met by assessments against the property specially benefited, such bonds did not create a municipal indebtedness within the meaning of this section and therefore did not require the approval of the President of the United States, nor was the validity of the bonds in any way affected by the provisions of the act limiting the amount of indebtedness which the City and County of Honolulu could incur. E.E. Black, Ltd. v. Conkling, 33 Haw. 731 (1936).

Highway bonds payable from special fund did not conflict with section. - Statute authorizing the issuance of interest-bearing improvement bonds by a city and county to defray the cost of highway improvements did not conflict with this section, where such bonds were not a charge against or payable out of the general funds of the municipality, but only a special fund composed of moneys collected on account of assessments made for the improvement for which they were issued. Von Damm v. Conkling, 23 Haw. 487 (1916).

VII. EMINENT DOMAIN.

Question of whether use is "public use". - Neither the Fifth Amendment nor § 101-2 requires that there be a legislative declaration of public use or a formal legislative finding of necessity. The question as to whether any use is a public use is ultimately a judicial one. Territory of Haw. ex rel. Att'y Gen. v. Aona, 43 Haw. 253 (1959).

Rehabilitation center for blind and physically handicapped persons. - The superintendent of public works did not abuse his discretion in deciding that it was necessary to condemn land for use as a site for a rehabilitation center for blind and physically handicapped persons. Territory of Haw. ex rel. Att'y Gen. v. Aona, 43 Haw. 253 (1959).

VIII. REAPPORTIONMENT.

Periodic reapportionment of legislature. - This section provides for periodic reapportionment of the territorial legislature on the basis of the population in each district. The purpose of this provision was to insure equity of representation in the legislature. Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956), rev'd on other grounds, 256 F.2d 728 (9th Cir. 1958).

Validity of act passed after failure to reapportion membership. - Whether the failure of the legislature of the Territory of Hawaii, at its first regular session after the census enumeration was ascertained, to reapportion the membership in the senate and house of representatives, as required by this section, rendered invalid a statute enacted by the legislature subsequent to such requirement becoming effective was a political question and not justiciable. Each house of the legislature under the Organic Act was the judge of the elections, returns and qualifications of its own members, which power, coupled with the well-recognized independence of the legislative branch of the government, forbade interference by the judiciary with legislative expediency. Territory v. Tam, 36 Haw. 32 (1942).

OPINIONS OF ATTORNEY GENERAL

"Benevolent" construed. - The term "benevolent," as found in this section, contemplated that the "benevolent" purpose be one of general welfare and of direct or indirect benefit to the public, rather than restricted to members of a select group. Op. Att'y Gen. No. 59-165 (1959).

Replacement of debt limitation provision by state Constitution. - As to the replacement of the debt limitation provisions found in this section by the debt limitation provision provided for under the Constitution of the State of Hawaii upon the admission of Hawaii as a state, see Op. Att'y Gen. No. 59-46 (1959).

Joint project for use of national guard facilities. - As to the propriety of participation by the state of Hawaii in a joint utilization project with the federal government for use of national guard facilities and legislative authority to effectuate such participation, see Op. Att'y Gen. No. 59-107 (1959).

Power to redistrict or reapportion legislature. - By virtue of Public Law 895, 84th Congress, 2d Session, 70 Stat. 903 (the Reapportionment Act), expressly amending this section and impliedly repealing § 65 of the Organic Act, the legislature has no power to redistrict or reapportion the legislature; such powers were vested solely in the governor, who could exercise his authority only if the conditions set forth in this section as amended were found to exist. Op. Att'y Gen. No. 59-6 (1959).

TOWN, CITY, AND COUNTY GOVERNMENT.

56.

That the legislature may create counties and town and city municipalities within the Territory of Hawaii and provide for the government thereof, and all officials thereof shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislature of the Territory.

[Am Mar. 3, 1905, c 1465, 33 Stat 1035]

Cross References. - For county act of 1905, and city and county act of 1907, see Chapters 52, 54, 61 to 67, and 70. See also, 20 Stat. 101; 25 Stat. 336.

CASE NOTES

This section does not require officials of municipalities be elected solely by the people of each municipality or to be appointed solely by the mayor or the supervisors or other municipal officers. McKenzie v. Wilson, 31 Haw. 216 (1930).

Congress did not intend § 16 of the Organic Act to prescribe who should not be appointed or elected to any office purely municipal, but by this section left that to the territorial legislature. Hollinger v. Kumalae, 25 Haw. 669 (1920).

Act's general power to create city municipalities not limited by federal act of 1886. - A federal act of 1886, prohibiting territories then and thereafter to be organized from incorporating cities by a special law, did not limit the general power subsequently given by the Organic Act to create city municipalities. Emmeluth v. Board of Supvrs., 19 Haw. 171 (1908).

Authority of city of Honolulu to determine payment of moral obligation implied by this section. - Authority of the legislature to delegate to the city of Honolulu its power to investigate and determine moral obligations of that city for purposes of payment thereof is implied from the language of this section, which authorizes the territorial legislature to provide for the government of, as well as to create, counties and towns and city municipalities. Such delegation by the legislature to the legislative body of a political subdivision of the Territory is one within the same branch of government, comparable to the delegation of legislative power by Congress to the territorial legislature. It therefore does not come under the prohibition of the general doctrine against delegation of legislative powers to other branches of government as a constitutional limitation upon a legislature. James W. Glover, Ltd. v. Fong, 39 Haw. 308, appeal dismissed, 197 F.2d 710 (9th Cir. 1952).

County has no power to prohibit act already made penal by territorial statute. - Under legislative authority to regulate all local police, sanitary and other regulations not in conflict with the general laws of the Territory, a county had no power to prohibit by ordinance an act already made penal by territorial statute. Territory v. McCandless, 18 Haw. 616 (1908).

Act of legislature of Territory conferring authority upon County of Hawaii to pass ordinances did not expressly provide that parent government would be bound thereby. Hilo Meat Co. v. Antone, 23 Haw. 675 (1917).

Cited in Territory ex rel. County of Oahu v. Whitney, 17 Haw. 174 (1905); Hilo Meat Co. v. Antone, 23 Haw. 675 (1917).

ELECTIONS.

57. Exemptions of electors on election day.

That every elector shall be privileged from arrest on election day during his attendance at election and in going to and returning therefrom, except in case of breach of the peace then committed, or in case of treason or felony.

58.

That no elector shall be so obliged to perform military duty on the day of election as to prevent his voting, except in time of war or public danger, or in case of absence from his place of residence in actual military service, in which case provision may be made by law for taking his vote.

59. Method of voting for representatives.

That each voter for representative may cast a vote for as many representatives as are to be elected from the representative district in which he is entitled to vote.

The required number of candidates receiving the highest number of votes in the respective representative districts shall be the representatives for such districts.

60. Qualifications of voters for representatives.

That in order to be qualified to vote for representatives a person shall -

First. Be a citizen of the United States.

Second. Have resided in the Territory not less than one year preceding and in the representative district in which he offers to register not less than three months immediately preceding the time at which he offers to register.

Third. Have attained the age of twenty-one years.

Fourth. Prior to each regular election, during the time prescribed by law for registration, have caused his name to be entered on the register of voters for representatives for his district.

Fifth. Be able to speak, read and write the English or Hawaiian language.

[Am June 26, 1930, c 620, 46 Stat 818]

Cross References. - See also, as to qualifications of voters, §§ 18, 62, and 63 of the Organic Act. As to citizenship, see §§ 4, and 100. As to registration, see § 64.

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, was not void as being in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Provisions of Organic Act on qualifications for electors as effective as if expressed in municipal act. - Sections 42 and 70 of the act incorporating the City and County of Honolulu (since repealed) were in conflict with the provisions of the Organic Act relative to the qualifications of electors and absolutely void. But the entire act was not thereby made inoperative or invalid, the provisions of the Organic Act on the subject of qualifications for electors being as effective as if especially expressed in the municipal act, particularly in view of the fact that in former § 40 they were declared to be applicable. Emmeluth v. Board of Supvrs., 19 Haw. 171 (1908).

One who has no place of abode except on steamer engaged in inter-island trade was not a resident of a particular precinct within the meaning of the election laws, although the steamer when at Honolulu docked at a wharf in such precinct and Honolulu was her home port. In re Irving, 13 Haw. 22 (1900).

Cited in In re Loucks, 13 Haw. 17 (1900); Harris v. Cooper, 14 Haw. 145 (1902); Fairchild v. Smith, 15 Haw. 265 (1903).

OPINIONS OF ATTORNEY GENERAL

Alien who became naturalized citizen a few days prior to a coming election held not eligible to vote in said election, since the person in question was not able to register prior to the closing of the county register. However, upon his registration, he would be entitled to vote in future state and local elections. Op. Att'y Gen. No. 59-50 (1959).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 Haw. B.J. 107 (1982).

61. Method of voting for senators.

That each voter for senator may cast one vote for each senator to be elected from the senatorial district in which he is entitled to vote.

The required number of candidates receiving the highest number of votes in the respective senatorial districts shall be the senators for such district.

62. Qualifications of voters for senators and in all other elections.

That in order to be qualified to vote for senators and for voting in all other elections in the Territory of Hawaii a person must possess all the qualifications and be subject to all the conditions required by this Act of voters for representatives.

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, was not void as being in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Cited in Fairchild v. Smith, 15 Haw. 265 (1903).

OPINIONS OF ATTORNEY GENERAL

Alien who became a naturalized citizen a few days prior to a coming election held not eligible to vote in said election, since the person in question was not able to register prior to the closing of the county register. However, upon his registration, he would be entitled to vote in future state and local elections. Op. Att'y Gen. No. 59-50 (1959).

63.

That no person shall be allowed to vote who is in the Territory by reason of being in the Army or Navy or by reason of being attached to troops in the service of the United States.

OPINIONS OF ATTORNEY GENERAL

Serviceman merely stationed in Hawaii not resident. - The intention of this section is clearly to provide that no person attached to the armed forces of the United States becomes a resident of Hawaii merely by reason of being in Hawaii by virtue of being stationed here as a serviceman. Op. Att'y Gen. No. 60-119 (1960).

64.

That the rules and regulations for administering oaths and holding elections set forth in Ballou's Compilation, Civil Laws, Appendix, and the list of registering districts and precincts appended, are continued in force with the following changes, to wit:

Strike out the preliminary proclamation and sections one to twenty-six, inclusive, sections thirty and thirty-nine, the second and third paragraphs of section forty-eight, the second paragraph of section fifty, and sections sixty-two, sixty-three, and sixty-six, second paragraph of section one hundred.

In section twenty-nine strike out all after the word "Niihau" and in lieu thereof insert: "The boards of registration existing at the date of the Approval of this Act shall go out of office, and new boards, which shall consist of three members each, shall be appointed by the governor, by and with the advice and consent of the senate, whose terms of office shall be four years. Appointments made by the governor when the senate is not in session shall be valid until the succeeding meeting of that body."

In section thirty-one strike out "the first day of April and the thirtieth day of June, in the year eighteen hundred and ninety-seven," and insert in lieu thereof "the last day of August and the tenth day of October, in the year nineteen hundred."

Strike out the words "and the detailed record" in sections fifty-two and one hundred and twelve.

Strike out "marshal" wherever it occurs and insert in lieu thereof "high sheriff."

Strike out of section fifty-three the words "except as provided in section one hundred and fourteen hereof."

In sections fifty-three, fifty-four, fifty-six, fifty-seven, fifty-nine, sixty, seventy-one, seventy-five, eighty-six, ninety-two, ninety-three, ninety-four, ninety-five, one hundred and eleven, one hundred and twelve and one hundred and thirteen strike out the words "minister" and "minister of the interior" wherever they occur and insert in lieu thereof the words "secretary of the Territory."

In section fifty-six, paragraph three, strike out "interior office" and insert "office of the secretary of the Territory." In section fifty-six, first paragraph, after the words "candidate for election" insert "to the legislature;" and in the last paragraph strike out the word "only."

Strike out the word "elective" in section sixty-four. In sections twenty-seven, sixty-four, sixty-five, sixty-eight, seventy, and seventy-two strike out the words "minister of the interior" or "minister" wherever they occur and insert in lieu thereof the word "governor."

Amend section sixty-seven so that it will read: "At least forty days before any election the governor shall issue an election proclamation and transmit copies of the same to the several boards of inspectors throughout the Territory, or where such election is to be held."

In section seventy-five strike out the word "perfectly," and in section seventy-six strike out "in" and insert "on." In section one hundred and twelve strike out "interior department" and insert in lieu thereof "office of the secretary of the Territory." In section one hundred and fourteen strike out the word "Republic" wherever it occurs and insert in lieu thereof "Territory."

In section one hundred and fifteen strike out the words "minister" and "minister of the interior" and insert in lieu thereof "treasurer," and strike out all after the word "refreshments": Provided, however, That for the holding of a special election before the first general election the governor may prescribe the time during which the boards of registration shall meet and the registration be made.

CASE NOTES

As to the validity of former § 31 of the Organic Act, relating to filing of nomination papers by candidates, see Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Cited in Harris v. Cooper, 14 Haw. 145 (1902); Fairchild v. Smith, 15 Haw. 265 (1903); In re Contested Election, 15 Haw. 323 (1903); Territory ex rel. Willis v. Kanealii, 17 Haw. 243 (1905); Emmeluth v. Board of Supvrs., 19 Haw. 171 (1908); Cooke v. Thayer, 22 Haw. 247 (1914).

65.

That the legislature of the Territory may from time to time establish and alter the boundaries of election districts and voting precincts and apportion the senators and representatives to be elected from such districts.

Cross References. - As to change of districts, see also §§ 32 and 38 of the Organic Act.

OPINIONS OF ATTORNEY GENERAL

Legislature has no power to redistrict or reapportion legislature. - By virtue of Public Law 895, 84th Congress, 2d Session, 70 Stat. 903 (the Reapportionment Act), expressly amending § 55 and impliedly repealing this section of the Organic Act, the legislature had no power to redistrict or reapportion the legislature; such powers were vested solely in the governor, who could exercise his authority only if the conditions set forth in § 55 as amended were found to exist. Op. Att'y Gen. No. 59-6 (1959).

ARTICLE 3. The Executive.

66. The executive power.

That the executive power of the government of the Territory of Hawaii shall be vested in a governor, who shall be appointed by the President, by and with the advice and consent of the Senate of the United States, and shall hold office for four years and until his successor shall be appointed and qualified, unless sooner removed by the President. He shall be not less than thirty-five years of age; shall be a citizen of the Territory of Hawaii; shall have resided therein for at least three years next preceding his appointment; shall be commander in chief of the militia thereof, and may grant pardons or reprieves for offenses against the laws of said Territory and reprieves for offenses against the laws of the United States until the decision of the President is made known thereon.

[Am July 9, 1921, c 42, § 303, 42 Stat 116]

CASE NOTES

Only governor can issue pardon, not legislature. - The power of pardon is by § 66 of the Organic Act vested in the governor exclusively and cannot lawfully be exercised by the legislature. Under this power the governor may grant pardons which are partial in their operation as well as those which are full and absolute. The legislature may not remit a fine judicially imposed. In re Cummins, 20 Haw. 518 (1911).

Supreme court of Hawaii was an intermediate court of appeal in a case where the appellant had the right of appeal from an adverse decision by the supreme court of the United States Circuit Court of Appeals for the Ninth Circuit and a decision by the supreme court on a former appeal of the cause did not become the law of the case. Goo v. Hee Fat, 35 Haw. 827 (1941). Cited in De Mello v. Fong, 37 Haw. 415 (1946).

67. Enforcement of law.

That the governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.

Historical note. - The privilege of the writ of habeas corpus was suspended and the Territory was placed under martial law on the afternoon of December 7, 1941. Proclamation of martial law was modified September 2, 1942, and February 8, 1943. Martial law terminated and the privilege of the writ was restored by Presidential Proclamation 2627, October 18, 1944, effective October 24, 1944, 9 F.R. 12831, and Governor's proclamation of October 24, 1944. For military powers thereafter see Executive Order 9489, October 18, 1944, effective October 24, 1944, 9 F.R. 12831. See also Executive Order 8987, 6 F.R. 6675.

CASE NOTES

Organic Act is fundamental law of Territory. - The Organic Act passed by Congress for the government of a territory, and under which the territorial government is organized, must be taken as the fundamental law of the territory; and all territorial legislative assemblies derive their force and validity from such Organic Acts. Achi v. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

The right to establish martial law springs from the necessity arising from disorders that disrupt and make inoperative civil government, and it ceases and becomes unlawful as soon as the civil government is capable and willing to resume its normal functions. Ex parte Duncan, 66 F. Supp. 976 (D. Haw. 1944).

Martial law is the law of public necessity. Where the territorial courts were functioning and could have operated in their own sphere without hindering the military, it could not be said that it was reasonably necessary from a military viewpoint to try civilians in provost courts. Ex parte Spurlock, 66 F. Supp. 997 (D. Haw. 1944).

Martial law is not intended to authorize supplanting of courts by military tribunals. - The phrase "martial law," while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946).

Military governor. - The commanding general of the Hawaiian Department, who was military governor under order of the governor declaring martial law, was an agency of the United States. Kam Koon Wan v. E.E. Black, Ltd., 188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826, 72 S. Ct. 49, 96 L. Ed. 625 (1951).

Suspension of writ of habeas corpus. - It is history that the islands were invaded on December 7, 1941. Such being the case, the governor's suspension until further notice of the privilege of the writ of habeas corpus, with the approval of the President, was authorized by the Constitution and by specific act of Congress. Zimmerman v. Walker, 132 F.2d 442 (9th Cir. 1942), cert. denied, 319 U.S. 744, 63 S. Ct. 1027, 87 L. Ed. 1700 (1943).

68. General powers of the governor.

That all the powers and duties which, by the laws of Hawaii, are conferred upon or required of the President or any minister of the Republic of Hawaii (acting alone or in connection with any other officer or person or body) or the cabinet or executive council, and not inconsistent with the Constitution or laws of the United States, are conferred upon and required of the governor of the Territory of Hawaii, unless otherwise provided.

CASE NOTES

Cited in In re Austin, 15 Haw. 114 (1903).

69. Secretary of the Territory; acting secretary.

That there shall be a secretary of the said Territory, who shall be appointed by the President, by and with the advice and consent of the Senate of the United States, and who shall be a citizen of the Territory of Hawaii and hold his office for four years and until his successor shall be appointed and qualified, unless sooner removed by the President. He shall record and preserve all the laws and proceedings of the legislature and all acts and proceedings of the governor, and promulgate proclamations of the governor. He shall, within thirty days after the end of each session of the legislature, transmit to the President, the President of the Senate, and the Speaker of the House of Representatives of the United States one copy each of the laws and journals of such session. He shall perform such other duties as are prescribed in this Act or as may be required of him by the legislature of Hawaii.

The secretary may, with the approval of the governor, designate some other officer of the government of the Territory of Hawaii to act as secretary during his temporary absence or during his illness. Such designation and approval shall be in writing and shall be filed in the office of the governor, and a copy thereof, certified by the governor, shall be filed in the office of the Secretary of the Interior of the United States. Such person so designated shall, during the temporary absence or illness of the secretary, be known as the acting secretary of the Territory of Hawaii, and shall have and exercise all the powers and duties of the secretary, except those provided for by section 70 of this Act (U.S.C., title 48, § 535). Such acting secretary shall serve without additional compensation, but the secretary shall be responsible and liable on his official bond for all acts done by the acting secretary in the performance of his duties as acting secretary.

[Am July 2, 1932, c 389, 47 Stat 565; Aug. 21, 1958, Pub L 85-714, 72 Stat 707]

70. Acting governor in certain contingencies.

That in case of the death, removal, resignation, or disability of the governor, or his absence from the Territory, the secretary shall exercise all the powers and perform all the duties of governor during such vacancy, disability, or absence, or until another governor is appointed and qualified.

71. Attorney-general.

That there shall be an attorney-general, who shall have the powers and duties of the attorney-general and those of the powers and duties of the minister of the interior which relate to prisons, prisoners, and prison inspectors, notaries public, and escheat of lands under the laws of Hawaii, except as changed by this Act and subject to modification by the legislature.

CASE NOTES

Attorney general had the power and right to present criminal matters to the grand jury without the authority and permission of the county attorney. In re Bevins, 26 Haw. 570 (1922).

72. Treasurer.

That there shall be a treasurer, who shall have the powers and duties of the minister of finance and those of the powers and duties of the minister of the interior which relate to licenses, corporations, companies, and partnerships, business conducted by married women, newspapers, registry of conveyances, and registration of prints, labels, and trademarks under the laws of Hawaii, except as changed in this Act and subject to modification by the legislature.

CASE NOTES

Cited in Ninomiya v. Kepoikai, 15 Haw. 273 (1903); In re Treasurer, 15 Haw. 718 (1904).

73. Commissioner of public lands.

(a) That when used in this section -

(1) The term "commissioner" means the commissioner of public lands of the Territory of Hawaii;

(2) The term "land board" means the board of public lands, as provided in subdivision (1) of this section;

(3) The term "public lands" includes all lands in the Territory of Hawaii classed as government or crown lands previous to August 15, 1895, or acquired by the government upon or subsequent to such date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; except (1) lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, (2) lands set apart or reserved by Executive order by the President, (3) lands set aside or withdrawn by the governor under the provisions of subdivision (q) of this section, (4) sites of public buildings, lands used for roads, streets, landings, nurseries, parks, tracts reserved for forest growth or conservation of water supply, or other public purposes, and (5) lands to which the United States has relinquished the absolute fee and ownership, unless subsequently placed under the control of the commissioner and given the status of public lands in accordance with the provisions of this Act, the Hawaiian Homes Commission Act, 1920, or the Revised Laws of Hawaii of 1915; and

(4) The term "person" includes individual, partnership, corporation, and association.

(b) Any term defined or described in section 347 or 351 of the Revised Laws of Hawaii of 1915, except a term defined in subdivision (a) of this section, shall, whenever used in this section, if not inconsistent with the context or any provision of this section, have the same meaning as given it by such definition or description.

(c) The laws of Hawaii relating to public lands, the settlement of boundaries, and the issuance of patents on land commission awards, except as changed by this Act, shall continue in force until Congress shall otherwise provide. Subject to the approval of the President, all sales, grants, leases, and other dispositions of the public domain, and agreements concerning the same, and all franchises granted by the Hawaiian government in conformity with the laws of Hawaii, between the 7th day of July, 1898, and the 28th day of September, 1899, are hereby ratified and confirmed. In said laws "land patent" shall be substituted for "royal patent"; "commissioner of public lands," for "minister of the interior," "agent of public lands," and "commissioners of public lands," or their equivalents; and the words "that I am a citizen of the United States," or "that I have declared my intention to become a citizen of the United States, as required by law," for the words "that I am a citizen by birth (or naturalization) of the Republic of Hawaii," or "that I have received letters of denization under the Republic of Hawaii," or "that I have received a certificate of special right of citizenship from the Republic of Hawaii."

(d) No lease of the surface of agriculture lands or of undeveloped and public land which is capable of being converted into agricultural land by the development, for irrigation purposes, of either the underlying or adjacent waters, or both, shall be granted, sold, or renewed by the government of the Territory of Hawaii for a longer period than sixty-five years. Each such lease shall be sold at public auction to the highest bidder after due notice as provided in subdivision (i) of this section and the laws of the Territory of Hawaii. Each such notice shall state all the terms and conditions of the sale. The land, or any part thereof so leased, may at any time during the term of the lease be withdrawn from the operation thereof for homestead or public purposes, upon the payment of just compensation for such withdrawal. Every such lease shall contain a provision to that effect: Provided, That the commissioner may, with the approval of the governor and at least two-thirds of the members of the land board, omit such withdrawal provision from, or limit the same in, the lease of any lands whenever he deems it advantageous to the Territory of Hawaii, and land so leased shall not be subject to such right of withdrawal, or shall be subject only to a right of withdrawal as limited in the lease.

(e) All funds arising from the sale or lease or other disposal of public land shall be appropriated by the laws of the government of the Territory of Hawaii and applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation, approved July 7, 1898.

(f ) No person shall be entitled to receive any certificate of occupation, right of purchase lease, cash freehold agreement, or special homestead agreement who, or whose husband or wife, has previously taken or held more than ten acres of land under any such certificate, lease, or agreement made or issued after May 27, 1910, or under any homestead lease or patent based thereon; or who, or whose husband or wife, or both of them, owns other land in the Territory, the combined area of which and the land in question exceeds eighty acres; or who is an alien, unless he has declared his intention to become a citizen of the United States as provided by law. No person who has so declared his intention and taken or held under any such certificate, lease, or agreement shall continue so to hold or become entitled to a homestead lease or patent of the land, unless he becomes a citizen within five years after so taking.

(g) No public land for which any such certificate, lease, or agreement is issued after May 27, 1910, or any part thereof, or interest therein or control thereof, shall, without the written consent of the commissioner and governor, thereafter, whether before or after a homestead lease or patent has been issued thereon, be or be contracted to be in any way, directly or indirectly, by process of law or otherwise, conveyed, mortgaged, leased, or otherwise transferred to, or acquired or held by or for the benefit of, any alien or corporation; or before or after the issuance of a homestead lease or before the issuance of a patent to or by or for the benefit of any other person; or, after the issuance of a patent, to or by or for the benefit of any person who owns, or holds, or controls, directly or indirectly, other land or the use thereof, the combined area of which and the land in question exceeds eighty acres. The prohibitions of this paragraph shall not apply to transfers or acquisitions by inheritance or between tenants in common.

(h) Any land in respect of which any of the foregoing provisions shall be violated shall forthwith be forfeited and resume the status of public land and may be recovered by the Territory or its successors in an action of ejectment or other appropriate proceedings. And noncompliance with the terms of any such certificate, lease, or agreement, or of the law applicable thereto, shall entitle the commissioner, with the approval of the governor before patent has been issued, with or without legal process, notice, demand, or previous entry, to retake possession and thereby determine the estate: Provided, That the times limited for compliance with any such approval upon its appearing that an effort has been made in good faith to comply therewith.

(i) The persons entitled to take under any such certificate, lease, or agreement shall be determined by drawing or lot, after public notice as hereinafter provided; and any lot not taken or taken and forfeited, or any lot or part thereof surrendered with the consent of the commissioner, which is hereby authorized, may be disposed of upon application at not less than the advertised price by any such certificate, lease, or agreement without further notice. The notice of any sale, drawing, or allotment of public land shall be by publication for a period of not less than sixty days in one or more newspapers of general circulation published in the Territory: Provided however, That (1) lots may be sold for cash or on an extended time basis, as the Commissioner may determine, without recourse to drawing or lot and forthwith patented to any citizen of the United States applying therefor, possessing the qualifications of a homesteader as now provided by law, and who has qualified for and received a loan under the provisions of the Bankhead-Jones Farm Tenant Act, as amended or as may hereafter be amended, for the acquisition of a farm, and (2) with or without recourse to drawing or lot