Organic Act to Provide a Government for the Territoryof Hawaii

Editor's Note. - 1993 Haw. Sess.Laws, Act 359, relating to the efforts of native Hawaiians to be governedby an indigenous sovereign nation of their own choosing, was amended by1994 Haw. Sess. Laws, Act 200, effective July 1, 1994, and repealed effectiveDecember 31, 1997. Sections 2 through 5 of Act 359, as amended, provide:"SECTION 2. Purpose. The purpose of this Act is to acknowledgeand recognize the unique status that the native Hawaiian people bear tothe State of Hawaii and to the United States and to facilitate the effortsof native Hawaiians to determine their will to be governed by an indigenoussovereign nation of their own choosing. In the spirit of self-determinationand by this Act, a Hawaiian sovereignty elections council is establishedto:

"(1) Hold a plebiscite in 1995, todetermine the will of the indigenous Hawaiian people to restore a nationof their own choosing; and

"(2) Should the plebiscite be approvedby a majority of qualified voters, provide for a fair and impartial processto resolve the issues relating to form, structure, and status of a Hawaiiannation.

"SECTION 3. Definitions. As usedin this chapter, unless the context otherwise requires:

"'Council' means the Hawaiian sovereigntyelections council.

"'Hawaiian' and 'native Hawaiian'mean any descendent of the races inhabiting the Hawaiian islands priorto 1778.

"'Hawaiian organization' means anyorganization in the State which serves and represents the interests ofHawaiians, has a membership consisting of at least a majority of Hawaiians,and has been organized for at least one year.

"'Qualified voter' means any personqualified to vote pursuant to section 13D-3, Hawaii Revised Statutes.

"'Special elections' means the Hawaiianconvention referendum, the election of delegates, and the ratificationelection.

"SECTION 4. Hawaiian sovereigntyelections council. (a) There is established within the department ofaccounting and general services for administrative purposes the Hawaiiansovereignty elections council, to carry out the purposes of this Act. Thecouncil shall consist of twenty members appointed by the governor withoutregard for section 78-4, Hawaii Revised Statutes. At least twelve of thetwenty members shall be appointed from nominations submitted by Hawaiianorganizations. Among the twelve, the governor shall appoint one memberso designated from each of the following organizations: the Office of HawaiianAffairs; Ka Lahui Hawai'i; the State Council of Hawaiian Homestead Association;and the Association of Hawaiian Civic Clubs. The council shall consistof at least one member from each of the islands of: Kauai; Niihau; Maui;Molokai; Lanai; Oahu; and Hawaii and one member representing nonresidentHawaiians. Appointments shall be made before August 1, 1993, and shallnot be subject to confirmation by the senate. Any appointment not madeby that date shall be filled by the council during its first meeting whichshall be held before August 15, 1993. After August 31, 1994, no memberof the council shall be eligible to run in any special election under thisAct. The members shall elect a chairperson and vice-chairperson. Any vacancyon the council after July 1, 1994, shall be filled by the governor froma list of nominees submitted by the council. If the governor fails to makean appointment within thirty days of receiving the list, the council shallmake an appointment from the list of nominees. Members shall serve withoutcompensation but shall be reimbursed for expenses, including travel andsubsistence expenses, necessary for the performance of their duties. Expensesshall be paid by the office of state planning.

"(b) The council shall:

"(1) Plan and conduct the plebiscitein 1995;

"(2) Carry out the responsibilitiesnecessary for the conduct of elections and the convening of delegates;

"(3) Provide for an apportionmentplan;

"(4) Establish the eligibility ofconvention delegates;

"(5) conduct Hawaiian voter educationand registration; and

"(6) Establish task forces and committeesnecessary for the purposes of this Act.

"(c) For the purposes of funding,the council shall submit its plan for the election and convening of delegatesto the legislature not less than twenty days prior to the convening ofthe regular session of 1995.

"SECTION 4A. In carrying out thepurposes of this Act, the council shall establish policies that do notdiscriminate on the basis of citizenship, place of residence, or civilstatus.

"SECTION 5. Task forces. (a)The governor shall convene an interagency task force, consisting of personsfrom such public agencies as may be necessary, to support the needs ofthe council. "(b) The council may establish a task force, otherwiseknown as a kupuna council, to provide advice and support as necessary.Members shall be appointed without regard for section 78-4, Hawaii RevisedStatutes. Members of the kupuna council shall serve without compensationbut shall be reimbursed for expenses, including travel and subsistenceexpenses, necessary for the performance of their duties. 1994 Haw. Sess.Laws, Act 200, § 11, further provides that the individuals who wereduly appointed under 1993 Haw Sess. Laws, Act 359, and are serving as membersof the Hawaiian sovereignty advisory commission on July 1, 1994, shallserve as members of the Hawaiian sovereignty elections council under thisAct.

ARTICLE 1. GeneralProvisions.

§ 1. Definitions.

That the phrase "the laws of Hawaii,"as used in this Act without qualifying words, shall mean the constitutionand laws of the Republic of Hawaii, in force on the twelfth day of August,eighteen hundred and ninety-eight, at the time of the transfer of the sovereigntyof the Hawaiian Islands to the United States of America.

The constitution and statute laws of theRepublic of Hawaii then in force, set forth in a compilation made by SidneyM. Ballou under the authority of the legislature, and published in twovolumes entitled "Civil Laws" and "Penal Laws," respectively,and in the Session Laws of the Legislature for the session of eighteenhundred and ninety-eight, are referred to in this Act as "Civil Laws,""Penal Laws," and "Session Laws."

Historical note. - This is theAct, as since amended, of April 30, 1900, c. 339, 31 Stat. 141 (2 Supp.R.S. 1141), prepared and recommended by a commission appointed by the Presidentunder the Joint Resolution of Annexation of July 7, 1898, 30 Stat. 750(2 Supp. R.S. 895). The formal transfer of sovereignty under that resolutiontook place Aug. 12, 1898, and this Organic Act, creating the Territory,took effect June 14, 1900. See Joint Resolution RLH 1955, page 13, withnotes thereto, for application of Federal Constitution and laws to Hawaiibetween annexation and establishment of territorial government.

For decisions under this Organic Act,see notes to sections thereof.

For note relating to act of Congress,presidential proclamations, and executive orders, see the ChronologicalNote, RLH 1955, page 9.

The volumes mentioned in the second paragraphof this section did not contain all the laws then in force referred toin the first paragraph, nor were all the laws therein contained then inforce. The Civil Laws and Penal Laws were compilations, not enacted bythe legislature. These laws were in general continued in force by Congresswith certain exceptions and modifications. See §§ 6,7 of the Organic Act. See also, as to continuationof Hawaiian laws, notes to other sections of the Organic Act, and to JointResolution of Annexation, RLH 1955, page 13.

CASE NOTES

Cited in Ex parte Wilder's S.S.Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); United States v.Yii, 3 U.S.D.C. Haw. 87 (1906); Cooke v. Thayer, 22 Haw. 247 (1914); Mookiniv. United States, 303 U.S. 201, 58 S. Ct. 543, 82 L. Ed. 748 (1938); Inter-IslandSteam Nav. Co. v. Hawaii, 305 U.S. 306, 59 S. Ct. 202, 83 L. Ed. 189 (1938);Bishop v. Kalua, 36 Haw. 164 (1942); Zimmerman v. Poindexter, 78 F. Supp.421 (D. Haw. 1947); Kam Koon Wan v. E.E. Black, Ltd., 75 F. Supp. 553 (D.Haw. 1948); Reinecke v. Loper, 77 F. Supp. 333 (D. Haw. 1948); Dyer v.Abe, 138 F. Supp. 220 (D. Haw. 1956); United States v. Coins, 144 F. Supp.740 (D. Haw. 1956); United States v. Gertz, 249 F.2d 662 (9th Cir. 1957);O'Daniel v. Inter-Island Resorts, Ltd., 46 Haw. 197, 377 P.2d 609 (1962);Burns v. Richardson, 384 U.S. 73, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966);Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

LEGAL PERIODICALS

University of Hawaii Law Review. Comment,State-Federal Jurisdictional Conflict over the Internal Waters and SubmergedLands of the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

§ 2. Territory of Hawaii.

That the islands acquired by the UnitedStates of America under an Act of Congress entitled "Joint resolutionto provide for annexing the Hawaiian Islands to the United States,"approved July seventh, eighteen hundred and ninety-eight, shall be knownas the Territory of Hawaii.

Historical note. - The Hawaiiangroup consists of the following islands: Hawaii, Maui, Oahu, Kauai, Molokai,Lanai, Niihau, Kahoolawe, Molokini, Lehua, Kaula, Nihoa, Necker, Laysan,Gardiner, Lisiansky, Ocean, French Frigates Shoal, Palmyra, Brooks Shoal,Pearl and Hermes Reef, Gambia Shoal and Dowsett and Maro Reef. The firstnineteen were listed in the Commission report transmitted to Congress bythe message of the President, Senate Doc. 16, 55th Congress, 3d Session,1898. U.S. Misc. Pub. 1898.

It has been a question whether Midwaywas acquired by Hawaii on July 5, 1859, and so is a part of the Territory,or was acquired by the United States independently on August 28, 1867;the latter was assumed in 182 U.S. 304. See the 1933 report of the HawaiianHistorical Society, paper read by P. C. Morris, Dec. 14, 1933. It was assumedby Congress that Midway was not part of the Territory in the Act of August13, 1940, c. 662, 54 Stat. 784, extending jurisdiction of United StatesDistrict Court for Hawaii to include Midway Islands, also Wake, Johnston,Sand, and Jarvis Islands.

Territorial jurisdiction includes themilitary and naval reservations within the exterior boundaries of the Territory.

By the Act of April 19, 1930, the HawaiiNational Park was removed from territorial jurisdiction except for certainpurposes therein stated.

CASE NOTES

For discussion of title to PalmyraIsland, see United States v. Fullard-Leo, 133 F.2d 743 (9th Cir.),cert. denied, 319 U.S. 748, 63 S. Ct. 1157, 87 L. Ed. 1703 (1943); UnitedStates v. Fullard-Leo, 156 F.2d 756 (9th Cir. 1946), aff 'd, 331 U.S. 256,67 S. Ct. 1287, 91 L. Ed. 1474 (1947).

Cited in In re Loucks, 13 Haw.17 (1900); Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46L. Ed. 321 (1902); Bishop v. Mahiko, 35 Haw. 608 (1940); Civil AeronauticsBd. v. Island Airlines, 235 F. Supp. 990 (D. Haw. 1964).

§ 3. Government of the Territory of Hawaii.

That a Territorial government is herebyestablished over the said Territory, with its capital at Honolulu, on theisland of Oahu.

Historical note. - By this ActHawaii acquired the status of an incorporated Territory and became an integralpart of the United States.

On the status of Hawaii between annexationand the establishment of territorial government, see note to Joint Resolutionof Annexation, RLH 1955, page 13.

CASE NOTES

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

§ 4. Citizenship.

That all persons who were citizens ofthe Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight,are hereby declared to be citizens of the United States and citizens ofthe Territory of Hawaii.

And all citizens of the United Statesresident in the Hawaiian Islands who were resident there on or since Augusttwelfth, eighteen hundred and ninety-eight and all the citizens of theUnited States who shall hereafter reside in the Territory of Hawaii forone year shall be citizens of the Territory of Hawaii.

Historical note. - This sectionwas supplemented by the Act of July 2, 1932, 47 Stat. 571, amended by theAct of July 1, 1940, 54 Stat. 707, providing that for purposes of the Actof Sept. 22, 1922, 46 Stat. 1511, women born in Hawaii prior to June 14,1900, were deemed U.S. citizens at birth. But the Act of Sept. 22, 1922was repealed by the Act of Oct. 14, 1940, 54 Stat. 1137, which in turnwas repealed by the Act of June 27, 1952, 66 Stat. 166 (the McCarran-WalterAct), and the present provisions are contained in 8 U.S.C. § 1435(a).

Under art. 17, § 1, of the Const.of 1894 (adapted from the 14th Am. of the U.S. Const.) all persons bornor naturalized in the Hawaiian islands and subject to the jurisdictionof the Republic of Hawaii were citizens thereof. Between 1842 and 1892,731 Chinese persons and three Japanese persons were naturalized in Hawaii.

The secretary of Hawaii may issue to personsborn in Hawaii certificates of Hawaiian birth, which are prima facie evidence.

See §§ 338-41 to 44. See alsoformer law: L. 1905, c. 64; am. L. 1907, c. 79; rep. L. 1909, c. 15; R.L.1915, p. 1487; R.L. 1925, c. 21; R.L. 1935, c. 247. See also §§100 and 101 of the OrganicAct. Also see the note to Joint Resolution of annexation, RLH 1955, page13.

CASE NOTES

Citizenship extended to persons born inHawaiian Islands. - A person born in the Hawaiian Islands of British parentsdomiciled in this country is subject to the jurisdiction of this countryand is a Hawaiian subject or citizen. In re Macfarlane, 11 Haw. 166 (1897).

The framers of the Act of Congress providinga government for the Territory of Hawaii approved April 30, 1900, intendedto refer to the geographical limits of the Hawaiian Islands rather thanto any political conditions existing therein; and that the Hawaiian andAmerican citizenship was to be extended to all persons born in the Islands,excepting only those born of persons engaged in the diplomatic serviceof foreign governments, such as ministers and ambassadors, whose residenceby a fiction of public law is regarded as the place of their own country.United States v. Sai, 1 U.S.D.C. Haw. 118 (1901).

The fact that two Chinese persons wereborn in the Hawaiian Islands while the same was a monarchy known as theKingdom of Hawaii did not deprive them of their status as American citizens,it being proven that they were born in the Hawaiian Islands, sons of adomiciled Chinese laborer, in view of the provisions of Art. 17, §1, of the Constitution of the Republic of Hawaii, and of the provisionsof this section of the Act of Congress, approved April 30, 1900, to providea government for the Territory of Hawaii, that all persons who were citizensof the Republic of Hawaii on August 12, 1898, were declared to be citizensof the United States and citizens of the Territory of Hawaii. United Statesv. Sai, 1 U.S.D.C. Haw. 118 (1901).

Naturalization. - The circuit courtsof the Territory had power to naturalize. Territory of Haw. v. Kaizo, 17Haw. 295, aff 'd, 18 Haw. 28 (1906), aff 'd, 211 U.S. 146, 29 S. Ct. 41,53 L. Ed. 125 (1908).

Hawaiian citizenship by naturalizationdid not extend to the nonresident minor children of the persons so naturalized,nor were such children, while still nonresident, made citizens of the UnitedStates by the provision contained in this section. In re Ko, 3 U.S.D.C.Haw. 623 (1910).

Deportation proceedings. - SeeUnited States v. Yong, 1 U.S.D.C. Haw. 104 (1901).

Cited in In re Loucks, 13 Haw.17 (1900); Ex parte Ah Oi, 13 Haw. 534 (1901); In re Sai, 1 U.S.D.C. Haw.234 (1902); United States v. Dang Mew Wan Lum, 88 F.2d 88 (9th Cir. 1937);United States v. Rodiek, 117 F.2d 588 (2nd Cir. 1941); Wong Kam Wo v. Dulles,236 F.2d 622 (9th Cir. 1956).

§ 5. United States Constitution.

That the Constitution, and, except asotherwise provided, all the laws of the United States, including laws carryinggeneral appropriations, which are not locally inapplicable, shall havethe same force and effect within the said Territory as elsewhere in theUnited States; Provided, That sections 1841 to 1891, inclusive, 1910 and1912, of the Revised Statutes, and the amendments thereto, and an act entitled"An act to prohibit the passage of local or special laws in the Territoriesof the United States, to limit Territorial indebtedness, and for otherpurposes," approved July 30, 1886, and the amendments thereto, shallnot apply to Hawaii. Annotations

[Am May 27, 1910, c 258, § 1, 36Stat 443; April 12, 1930, c 136, 46 Stat 160; June 6, 1932, c 209, §116(b), 47 Stat 205]

Historical note. - Federal liquorprohibition laws in effect in Hawaii were repealed by the Act of Mar. 26,1934, c. 88, 48 Stat. 467. For application of other provisions of the federalConstitution and laws to Hawaii, see note to Joint Resolution of Annexation,RLH 1955, page 13.

CASE NOTES

Section made federal law applicablein Hawaii. - This section provides that the Constitution and all lawsof the United States which are not locally inapplicable shall have thesame force and effect within Hawaii as elsewhere in the United States,with certain exceptions. United States v. Kee, 3 U.S.D.C. Haw. 262 (1908).

This section makes effective in the Territoryall the laws of the United States which are not locally applicable, savingonly certain specified statutes. The special exceptions strengthen thegeneral application of this statutory rule. United States v. Thurston,4 U.S.D.C. Haw. 1 (1911).

A territory must be considered in thesame category as a state, and the Commerce Clause of the federal Constitutionis applicable to such territory. Inter-Island Steam Nav. Co. v. Territoryof Haw., 96 F.2d 412 (9th Cir.), aff 'd, 305 U.S. 306, 59 S. Ct. 202, 83L. Ed. 189 (1938).

Where a territory is incorporated intothe United States (as in the case of the Territory of Hawaii) the federalConstitution applies and becomes operative in such territory. Territoryof Haw. v. Yoshimura, 35 Haw. 324 (1940).

This section guarantees the fundamentalrights of the Constitution to territorial citizens; it involves a nationalpolicy, the benefits of which the United States has accorded Hawaii. Thissection is a law giving rise to original jurisdiction of a United Statesdistrict court, and pursuant to it, the court may adjudicate plaintiff'sclaims for the equal protection of the law arising from a statute of theUnited States. Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956), rev'd on othergrounds, 256 F.2d 728 (9th Cir. 1958).

The equal protection of the law is guaranteedby the Organic Act of Hawaii. It is thus unnecessary to decide whetherthe Fourteenth Amendment applies directly to a territory; its protectionto individual citizens does apply. Dyer v. Abe, 138 F. Supp. 220 (D. Haw.1956), rev'd on other grounds, 256 F.2d 728 (9th Cir. 1958).

Fundamental law of territory. -The Organic Act passed by Congress for the government of a territory, andunder which the territorial government is organized, must be taken as thefundamental law of the territory; and all territorial legislative assembliesderive their force and validity from such organic acts. Achi v. KapiolaniEstate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

Cited in In re Loucks, 13 Haw.17 (1900); In re Lin ex rel. Chong, 1 U.S.D.C. Haw. 44 (1900); Ex parteAh Oi, 13 Haw. 534 (1901); Pringle v. Hilo Mercantile Co., 13 Haw. 705(1901); Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L.Ed. 321 (1902); Hawaii v. Mankichi, 190 U.S. 197, 23 S. Ct. 787, 47 L.Ed. 1016 (1903); United States v. Moore, 3 U.S.D.C. Haw. 66 (1906); Robinsonv. Baldwin, 19 Haw. 9 (1908); Territory of Haw. v. Martin, 19 Haw. 201(1908); United States v. Perez, 3 U.S.D.C. Haw. 295 (1908); Wynne v. UnitedStates, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); United Statesv. Ishibashyi, 3 U.S.D.C. Haw. 517 (1910); Duncan v. Kahanamoku, 327 U.S.304, 66 S. Ct. 606, 90 L. Ed. 688 (1946); United States v. Fullard-Leo,331 U.S. 256, 67 S. Ct. 1287, 91 L. Ed. 1474 (1947); Robinson v. Ariyoshi,441 F. Supp. 559 (D. Haw. 1977).

LEGAL PERIODICALS

Hawaii Bar Journal. Article, Hawaii'sLegal System: A Brief Survey, 1 Haw. B.J. (March 1963, at 1).

§ 6. Laws of Hawaii.

That the laws of Hawaii not inconsistentwith the Constitution or laws of the United States or the provisions ofthis Act shall continue in force, subject to repeal or amendment by thelegislature of Hawaii or the Congress of the United States.

Historical note. - As to the meaningof "laws of Hawaii," see § 1 of theOrganic Act and the note thereunder.

Pursuant to § 73(c)of the Organic Act, certain land laws are not subject to repeal or amendmentby legislature without the approval of Congress.

CASE NOTES

Organic Act as 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 takenas the fundamental law of the territory; and all territorial legislativeassemblies derive their force and validity from such Organic Acts. Achiv. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

Original Hawaiian statute definingmanslaughter was not inconsistent with the Constitution or laws of theUnited States or provisions of the Organic Act, and was one of thelaws continued in force pursuant to § 6 of theOrganic Act. Territory of Haw. v. Braly, 29 Haw. 7 (1926).

Unanimity of verdicts is essentialunder provisions of the Organic Act, but it may be waived, and it iswaived by a request for an instruction, which is given, that a verdictmay be rendered by nine jurors. Pringle v. Hilo Mercantile Co., 13 Haw.705 (1901).

Hawaiian laws not inconsistentwith U.S. Constitution or Act remain in effect until changed. - Thissection, providing that the laws of Hawaii not inconsistent with the Constitutionor laws of the United States or the provisions of the Organic Act shouldcontinue in force, subject to repeal or amendment by the legislature ofHawaii or the Congress of the United States, was significant of the completerecognition by the United States of the validity of such laws under thenew status and of the agreement for their continuance until subject tofurther legislation relating to them either by Congress or by the Hawaiianlegislature. United States v. Haleakala Ranch Co., 3 U.S.D.C. Haw. 299(1908).

Former statute relating to fornicationheld not inconsistent with any of the provisions of the Organic Actor the United States Constitution. Territory of Haw. v. Martin, 19 Haw.201 (1908).

Corporation chartered by Hawaiian monarchynot same as corporation organized by Congress and not forbidden from makingcontribution to political offices. - An act of Congress forbiddingany national bank or any corporation organized by authority of any lawsof Congress from making a money contribution in connection with an electionto political office was not applicable to a corporation chartered by thegovernment of the Hawaiian monarchy. United States v. Haleakala Ranch Co.,3 U.S.D.C. Haw. 299 (1908).

U. S. District Court for District ofHawaii had jurisdiction of an assault committed upon military reservationin the Territory of Hawaii. United States v. Motohara, 4 U.S.D.C. Haw.62 (1911).

The district court had jurisdiction ofan assault and battery committed by a commander of the United States Navyon the naval reservation in Honolulu. Territory v. Carter, 19 Haw. 198(1908).

Right of appeal. - Although withoutstatutory authority, the right of appeal to the circuit court for mitigationof sentence from district magistrates, and on exercise thereof the powerof the circuit court to mitigate an excessive sentence of the districtmagistrate, were fixed by Hawaiian judicial precedent within the meaningof § 1-1, and therefore had the force of a statutory right and powerunder the laws of Hawaii within the meaning of this section. In re Marteles,38 Haw. 479 (1950).

Cited in Coffield v. Territoryof Haw., 13 Haw. 478 (1901); Tomikawa v. Gama, 14 Haw. 431 (1902); Ex parteWilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); TheSchooner Robert Lewers Co. v. Kekauoha, 114 Fed. 849 (9th Cir. 1902); Inre Austin, 15 Haw. 114 (1903); In re Contested Election, 15 Haw. 323 (1903);Carter v. Gear, 197 U.S. 348, 25 S. Ct. 491, 49 L. Ed. 787 (1905); Kealohav. Castle, 112 U.S. 238, 5 S. Ct. 131, 28 L. Ed. 684 (1884); Wynne v. UnitedStates, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Territory ofHaw. v. Ota, 36 Haw. 80 (1942); State v. Tin Yan, 44 Haw. 370, 355 P.2d25 (1960); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

LEGAL PERIODICALS

Hawaii Bar Journal. Article, Hawaii'sLegal System: A Brief Survey, 1 Haw. B.J. (March 1963, at 1).

§ 7.

That the constitution of the Republicof Hawaii and of the laws of Hawaii, as set forth in the following acts,chapters, and sections of the civil laws, penal laws, and session laws,and relating to the following subjects, are hereby repealed:

Civil Laws: Sections two and three,Promulgation of laws; chapter five, Flag and seal; sections thirty to thirty-three,inclusive, Tenders for supplies; chapter seven, Minister of Foreign Affairs;chapter eight, Diplomatic and consular agents; section one hundred andthirty-four and one hundred and thirty-five, National museum; chapter twelve,Education of Hawaiian youths abroad; sections one hundred and fifty toone hundred and fifty-six, inclusive, Aid to board of education; chapterfourteen, Minister of the Interior; sections one hundred and sixty-sixto one hundred and sixty-eight, inclusive, one hundred and seventy-fourand one hundred and seventy-five, Government lands; section one hundredand ninety, Board of commissioners of public lands; section four hundredand twenty-four, Bureau of agriculture and forestry; chapter thirty-one,Agriculture and manufactures; chapter thirty-two, Ramie; chapter thirty-three,Taro flour; chapter thirty-four, Development of resources; chapter thirty-five,Agriculture; section four hundred and seventy-seven, Brands; chapter thirty-seven,Patents; chapter thirty-eight, Copyrights; sections five hundred and fifty-sixand five hundred and fifty-seven, Railroad subsidy; chapter forty-seven,Pacific cable; chapter forty-eight, Hospitals; chapter fifty-one, Coinsand currency; chapter fifty-four, Consolidation of public debt; chapterfifty-six, Post-office; chapter fifty-seven, Exemptions from postage; chapterfifty-eight, Postal savings banks; chapter sixty-five, Import duties; chaptersixty-six, Imports; chapter sixty-seven, Ports of entry and collectiondistricts; chapter sixty-eight, Collectors; chapter sixty-nine, Registryof vessels; section one thousand and eleven, Customs-house charges; sectioneleven hundred and two, Elections; section eleven hundred and thirty-two,Appointment of magistrate; last clause of first subdivision and fifth subdivisionof section eleven hundred and forty-four, first subdivision of sectioneleven hundred and forty-five, Jurisdiction; sections eleven hundred andseventy-three to eleven hundred and seventy-eight, inclusive, Translationof decisions; section eleven hundred and eighty-eight, Clerks of court;sections thirteen hundred and twenty-nine, thirteen hundred and thirty-one,thirteen hundred and thirty-two, thirteen hundred and forty-seven to thirteenhundred and fifty-four, inclusive, Juries; sections fifteen hundred andnine to fifteen hundred and fourteen, inclusive, Maritime matters; chapterone hundred and two, Naturalization; section sixteen hundred and seventy-eight,Habeas corpus; chapter one hundred and eight, Arrest of debtors; subdivisionssix, seven, ten, twelve to fourteen of section seventeen hundred and thirty-six,Garnishment; sections seventeen hundred and fifty-five to seventeen hundredand fifty-eight, inclusive, Liens on vessels; chapter one hundred and sixteen,Bankruptcy, and sections eighteen hundred and twenty-eight to eighteenhundred and thirty-two, inclusive, Water rights.

Penal Laws: Chapter six, Treason;sections sixty-five to sixty-seven, inclusive, Foot binding; chapter seventeen,Violation of postal laws; section three hundred and fourteen, Blasphemy;sections three hundred and seventy-one to three hundred and seventy-two,inclusive, Vagrants; sections four hundred and eleven to four hundred andthirteen, inclusive, Manufacture of liquors; chapter forty-three, Offenseson the high seas and other waters; sections five hundred and ninety-fiveand six hundred and two to six hundred and five, inclusive, Jurisdiction;section six hundred and twenty-three, Procedure; sections seven hundredand seven hundred and one, Imports; section seven hundred and fifteen,Auction license; section seven hundred and forty-five, Commercial travelers;sections seven hundred and forty-eight to seven hundred and fifty-five,inclusive, Firearms; sections seven hundred and ninety-six to eight hundredand nine, inclusive, Coasting trade; sections eight hundred and elevenand eight hundred and twelve, Peddling foreign goods; sections eight hundredand thirteen to eight hundred and fifteen, inclusive, Importation of livestock;section eight hundred and nineteen, Imports; sections eight hundred andeighty-six to nine hundred and six, inclusive, Quarantine; section elevenhundred and thirty-seven, Consuls and consular agents; chapter sixty-seven,Whale ships; sections eleven hundred and forty-five to eleven hundred andseventy-nine, inclusive, and twelve hundred and four to twelve hundredand nine, inclusive, Arrival, entry and departure of vessels; chapterssixty-nine to seventy-six, inclusive, Navigation and other matters withinthe exclusive jurisdiction of the United States; sections thirteen hundredand forty-seven and thirteen hundred and forty-eight, Fraudulent exportation;chapter seventy-eight, Masters and servants; chapter ninety-three, Immigration;sections sixteen hundred and one, sixteen hundred and eight, and sixteenhundred and twelve, Agriculture and forestry; chapter ninety-six, Seditiousoffenses; and chapter ninety-nine, Sailing regulations.

Session Laws: Act fifteen, Elections;Act twenty-six, Duties; Act twenty-seven, Exemptions from duties; Act thirty-two,Registry of vessels; section four of Act thirty-eight, Importation of livestock;Act forty-eight, Pacific cable; Act sixty-five, Consolidation of publicdebt; Act sixty-six, Ports of entry; and Act sixty-eight, Chinese immigration.Annotations

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 takenas the fundamental law of the territory; and all territorial legislativeassemblies derive their force and validity from such Organic Acts. Achiv. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

Writ of ne exeat was not available,in an action of assumpsit, to prevent a defendant from going away fromthe Territory or to compel him to give security for the payment of thejudgment that might be recovered. The execution of the writ would subjectthe defendant to imprisonment for debt, contrary to the provisions of theOrganic Act. Oahu Lumber & Bldg. Co. v. Ding Sing, 15 Haw. 412 (1904).

Cited in Ex parte Wilder's S.S.Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); Territory of Haw.v. Ng Kow, 15 Haw. 602 (1904); Carter v. Gear, 197 U.S. 348, 25 S. Ct.491 (1905); Territory of Haw. v. Martin, 19 Haw. 201 (1908); Wynne v. UnitedStates, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Territory ofHaw. v. Ota, 36 Haw. 80 (1942); State v. Jones, 45 Haw. 247, 365 P.2d 460(1961); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

§ 8. Certain offices abolished.

That the offices of President, ministerof foreign affairs, minister of the interior, minister of finance, ministerof public instruction, auditor-general, deputy auditor-general, surveyor-general,marshal, and deputy marshal of the Republic of Hawaii are hereby abolished.

CASE NOTES

Cited in Fugihara Oriemon v. Territoryof Haw., 13 Haw. 413 (1901); In re Austin, 15 Haw. 114 (1903); Ninomiyav. Kepoikai, 15 Haw. 273 (1903).

§ 9. Amendment of official titles.

That wherever the words "Presidentof 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 amendedto read "Governor of the Territory of Hawaii," or "Territoryof Hawaii," or "Government of the Territory of Hawaii,"or their equivalents, as the context requires.

CASE NOTES

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

§ 10. Construction of existing statutes.

That all rights of action, suits at lawand in equity, prosecutions, and judgments existing prior to the takingeffect of this Act shall continue to be as effectual as if this Act hadnot 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 equallyvalid in favor of or against the government of the Territory of Hawaii.All offenses which by statute then in force were punishable as offensesagainst the Republic of Hawaii shall be punishable as offenses againstthe government of the Territory of Hawaii, unless such statute is inconsistentwith this Act, or shall be repealed or changed by law. No person shallbe subject to imprisonment for nonpayment of taxes nor for debt. All criminaland penal proceedings then pending in the courts of the Republic of Hawaiishall be prosecuted to final judgment and execution in the name of theTerritory of Hawaii; all such proceedings, all actions at law, suits inequity, and other proceedings then pending in the courts of the Republicof Hawaii shall be carried on to final judgment and execution in the correspondingcourts of the Territory of Hawaii; and all process issued and sentencesimposed before this Act takes effect shall be as valid as if issued orimposed in the name of the Territory of Hawaii: Provided, That no suitor proceedings shall be maintained for the specific performance of anycontract 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 damagesfor such breach: Provided further, That the provisions of this sectionshall not modify or change the laws of the United States applicable tomerchant seamen.

That all contracts made since August twelfth,eighteen hundred and ninety-eight, by which persons are held for servicefor 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 itshall be the duty of the United States marshal to at once notify such personsso held of the termination of their contracts.

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

Historical note. - On contractlabor laws, see note to Joint Resolution of Annexation, RLH 1955, page13.

CASE NOTES

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

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

Pending admiralty case heard in Hawaiiancourt. - Appeal in admiralty was one of the other proceedings thenpending in the courts of the Republic of Hawaii which were to be carriedon to final judgment and execution in the corresponding courts of the Territoryof Hawaii, even though admiralty cases brought after the effective dateof 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 theNinth 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 tostipulation in contract wherein defendant agreed not to exhibit ordeal 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, 49L. Ed. 787 (1905); Kunewa v. Kaanaana, 18 Haw. 252 (1907); Honolulu AthleticPark v. Lowry, 22 Haw. 585 (1915); Honolulu Athletic Park v. Lowry, 22Haw. 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 Territorialcourts shall hereafter run in the name of "The Territory of Hawaii,"and all prosecutions shall be carried on in the name and by the authorityof the Territory of Hawaii.

[Rep L Sp 1959 1st, c 5, § 8]

CASE NOTES

Jurisdiction over violations of ProhibitionAct. - In conferring jurisdiction over violations of the ProhibitionAct on the courts of the Territory, Congress must clearly have intendedthat that jurisdiction should be exercised by the appropriate courts ofthe Territory in the usual manner in which similar jurisdiction is exercisedby 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. Countyof Oahu v. Whitney, 17 Haw. 174 (1905).

ARTICLE 2. The Legislature.

Historical note. - Chapter II ofthis 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 Territoryof Hawaii shall consist of two houses, styled, respectively, the senateand house of representatives, which shall organize and sit separately,except as otherwise herein provided.

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

CASE NOTES

Clerk of the house of representativeswas an "officer" within the meaning of Section 5408, RevisedStatutes of the United States, which prohibited officers having custodyof records, etc., from fraudulently taking away, withdrawing, or destroyingany such record. United States v. Meheula, 2 U.S.D.C. Haw. 18 (1904).

Settlement of legal or moral obligationfor the courts and not the legislature. - Where the facts out of whicheither 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.2d232 (9th Cir. 1947).

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

§ 13.

That no person shall sit as a senatoror representative in the legislature unless elected under and in conformitywith this Act.

CASE NOTES

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

§ 14. General elections.

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

Cross References. - As to electionof delegate, see § 85.

CASE NOTES

Authorizing legislature to alter oramend 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 theelection laws of the Territory, did not authorize the legislature to provideby statute for the election of members of the legislature at a time otherthan that fixed by this section for the holding of general elections. Cookev. Thayer, 22 Haw. 247 (1914).

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

§ 15. Each house judge of qualificationsof members.

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

CASE NOTES

Effect of failure to reapportion membershipon subsequently enacted statute. - The question of whether the failureof the legislature of the Territory, at its first regular session, afterthe census enumeration was ascertained, to reapportion the membership inthe senate and house of representatives, as required by §55 of the Organic Act, rendered invalid a statute enacted by the legislaturesubsequent to such requirement becoming effective, was a political questionand not justiciable. Each house of the legislature under the Organic Actwas the judge of the elections, returns and qualifications of its own members,which power, coupled with the well-recognized independence of the legislativebranch of the government, forbade interference by the judiciary with legislativeexpediency. 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 legislatureshall, during the term for which he is elected, be appointed or electedto any office of the Territory of Hawaii: Provided, That nothing in thisAct shall prevent a member of the legislature from serving as a delegateto 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 "officeof the territory of Hawaii" does not include offices purely localor municipal, but includes only such offices as were created for the purposeof carrying on the business of the territorial government. Hollinger v.Kumalae, 25 Haw. 669 (1920) (decision under prior law).

§ 17. Disqualifications of government officersand employees.

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

CASE NOTES

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

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

§ 18.

No idiot or insane person, and no personwho shall be expelled from the legislature for giving or receiving bribesor being accessory thereto, and no person who, in due course of law, shallhave been convicted of any criminal offense punishable by imprisonment,whether with or without hard labor, for a term exceeding one year, whetherwith or without fine, shall register to vote or shall vote or hold anyoffice in, or under, or by authority of, the government, unless the personso 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. Willisv. 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 takethe following oath or affirmation:

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

CASE NOTES

This section did not require thosewho held licenses as attorneys to take any new oath. It made this obligatoryonly upon every member of the legislature and all officers of the governmentof 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 representativesshall 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 memberson 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 membersto which each house is entitled shall constitute a quorum of such housefor the conduct of ordinary business, of which quorum a majority vote shallsuffice; but the final passage of a law in each house shall require thevote of a majority of all the members to which such house is entitled.

§ 23.

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

§ 24.

That, for the purpose of ascertainingwhether there is a quorum present, the chairman shall count the numberof members present.

§ 25. Punishment of persons not members.

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

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

CASE NOTES

State senators held subject to garnishmentstatute. - As state senators were accustomed or entitled to draw theirsalaries from the clerk of the senate upon a warrant of the auditor, thegarnishment statute authorized garnishing each of those officials. Thestatute was not unconstitutional on the ground that it was against publicpolicy 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 orcontempt are limited only to those situations in which the disrespector contempt is manifested before the house or senate or a committee whilein session. Op. Att'y Gen. No. 59-23 (1959).

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

Rule requiring registration of interestby lobbyists in both houses. - The legislature may adopt by concurrentresolution a single rule which is applicable to both the house and to thesenate, requiring the registration or revealing of interest by lobbyistsprior to any appearance before either the house or senate or a committeeof the house or senate. The sanctions against persons who fail to complywith such a rule are limited to appearances before the house and senateand committees thereof while in session. Neither house may punish an individualfor failure to comply with the rule while appearing before the other houseor a committee thereof. If it is the desire of the legislature to regulatethe activities of lobbyists beyond the scope of a rule adopted by a concurrentresolution, such restrictions must be enacted by either an act or a jointresolution having the force and effect of law in accordance with sections44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

§ 26. Compensation of members.

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

[Am May 27, 1910, c 258, § 2, 36Stat 443; July 9, 1921, c 42, § 301, 42 Stat 115; June 27, 1930, c647, 46 Stat 823; Aug. 20, 1958, Pub L 85-690, § 4, 72 Stat 684]

Historical note. - Between 1909and 1930, appropriations by Congress for Hawaiian legislative expensescontained the proviso that legislators should not receive compensationor mileage for any session held under § 54 ofthe Organic Act.

§ 27. Punishment of members.

That each house may punish its own membersfor disorderly behavior or neglect of duty, by censure, or by a two-thirdsvote suspend or expel a member.

§ 28. Exemption from liability.

That no member of the legislature shallbe held to answer before any other tribunal for any words uttered in theexercise 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 privilegedfrom arrest during their attendance at the sessions of the respective houses,and in going to and returning from the same: Provided, That such privilegeas to going and returning shall not cover a period of over ten days eachway.

THE SENATE.

§ 30. Senate; Number; Term.

The senate shall be composed of twenty-fivemembers, who shall be elected by the qualified voters of the respectivesenatorial districts for a term of four years beginning with their electionand ending on the day of the second general election after their election:Provided, however, That (1) senators elected at the general election of1956 shall continue to hold office until the expiration of the terms forwhich they were elected and shall be deemed to have been elected from thenew senatorial district in which they resided at the time of their election;and (2) that at the first session of the legislature subsequent to thegeneral election of 1958, the legislature shall so assign the senatorsto long or short terms, that as nearly as possible one half of them, includingthe holdover senators, shall hold office for two years and the remainingsenators shall hold office for four years. In the event that the legislaturefails to make the necessary assignments of short and long terms for senatorsas herein required, the Governor shall do so.

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

Cross References. - See §55 of the Organic Act as to reapportionment of senators and representativeson 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 specialelections.

§ 32. Senatorial Districts.

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

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

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

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

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

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

Sixth senatorial district: The islandsof Kauai and Niihau.

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

Cross References. - On reapportionmentof senators after the census, see § 55 of theOrganic 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 electionas a senator a person shall- Be a citizen of the United States; Have attainedthe age of thirty years; Have resided in the Hawaiian Islands not lessthan three years and be qualified to vote for senators in the districtfrom which he is elected.

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

CASE NOTES

Former § 31of 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 becomposed of fifty-one members, who shall be elected by the qualified votersof the respective representative districts.

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

§ 36. Term of office.

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

CASE NOTES

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

§ 37. Vacancies.

That vacancies in the office of representativecaused by death, resignation, or otherwise shall be filled for the unexpiredterm at special elections.

§ 38. Representative Districts.

For the purpose of representation in thehouse of representatives, the Territory is divided into the following representativedistricts:

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

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

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

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

Fifth representative district: That portionof the island of Hawaii known as Kohala and that portion of North Konanot included in the fourth representative district;

Sixth representative district: The islandsof Molokai and Lanai;

Seventh representative district: The islandsof Maui and Kahoolawe;

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

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

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

Eleventh representative district: Thatportion of the island of Oahu, for convenience herein referred to as Kalihi,more particularly described as follows: (1) from the intersection of Kalihiand Auiki Streets running westerly along Auiki Street to Mokauea Street;(2) southwesterly along Mokauea Street extension extended to a point onthe outer edge of the reef; (3) westerly along the outer edge of the reefto a point on the Moanalua-Halawa boundary; (4) northerly and northeasterlyalong the Moanalua-Halawa boundary to the top of Koolau Range; (5) southeasterlyalong 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 KalihiStreet to the point of beginning;

Twelfth representative district: Thatportion of the island of Oahu, for convenience herein referred to as UpperNuuanu, more particularly described as follows: (1) from the intersectionof King and Kalihi Streets running northeasterly along Kalihi Street tothe ridge between the lands of Kalihi, Kapalama and Nuuanu; (2) northeasterlyalong 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 alongNuuanu Avenue to School Street; (5) northwesterly along School Street tothe centerline of the Kapalama drainage canal (Waikiki Branch); (6) southwesterlyalong said canal to the centerline of the main Kapalama drainage canal;(7) southwesterly along said canal to King Street; and (8) northwesterlyalong King Street to the point of beginning;

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

Fourteenth representative district: Thatportion of the island of Oahu, for convenience herein referred to as Pauoa,more particularly described as follows: (1) from the junction of the HonoluluHarbor Channel and the outer edge of the reef running northeasterly alongthe middle of Honolulu Harbor Channel and Honolulu Harbor to the intersectionof Queen Street and Nuuanu Avenue; (2) northeasterly along Nuuanu Avenueto Pali Road and northeasterly along Pali Road to the top of Koolau Rangeat the Nuuanu Pali; (3) easterly and southerly along the top of the KoolauRange to a point called Puu Konahuanui; (4) southwesterly along the topof the ridge between the lands of Nuuanu, Pauoa and Manoa to a mountainpeak called Puu Ohia or Tantalus; (5) southwesterly along the top of theridge between the lands of Makiki and Kalawahine to the intersection ofNehoa Street and Lewalani Drive; (6) southerly along Lewalani Drive andPiikoi Street to Wilder Avenue; (7) easterly along Wilder Avenue to PunahouStreet; (8) southerly along Punahou Street to King Street; (9) westerlyalong King Street to Kalakaua Avenue; (10) southerly along Kalakaua Avenueto the center line of the Ala Wai Canal; (11) westerly along said canaland 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: Thatportion of the island of Oahu, for convenience herein referred to as Manoaand Waikiki, more particularly described as follows: (1) from the intersectionof Kalakaua Avenue and the center line of the Ala Wai Canal running northerlyalong Kalakaua Avenue to King Street; (2) easterly along King Street toPunahou Street; (3) northerly along Punahou Street to Wilder Avenue; (4)westerly along Wilder Avenue to Piikoi Street; (5) northerly along PiikoiStreet to Lewalani Drive; (6) northerly along Lewalani Drive to Nehoa Street;(7) northeasterly along the top of the ridge between the lands of Makikiand Kalawahine to a mountain peak called Puu Ohia or Tantalus; (8) northeasterlyalong the top of the ridge between the lands of Pauoa, Manoa and Nuuanuto a point on the Koolau Range called Puu Konahuanui; (9) southeasterlyalong the top of said range to a place called Mountain Olympus; (10) southwesterlyalong the top of Waahila Ridge to the top edge of Palolo Valley; (11) southwesterlyalong 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 hundredfeet southeasterly from Alencastre Street; (13) southwesterly parallelto and one hundred feet from Alencastre Street and Saint Louis Drive toWaialae Avenue; (14) westerly along Waialae Avenue to Kapahulu Avenue extended;(15) southerly across Waialae Avenue and along Kapahulu Avenue to KalakauaAvenue; (16) westerly along Kapahulu Avenue extended to the outer edgeof the reef; (17) northwesterly along the outer edge of the reef to a pointon 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: Thatportion of the island of Oahu, for convenience herein referred to as Kaimukiand Kapahulu, more particularly described as follows: (1) from a pointat the seacoast at a place called Black Point running westerly along theseacoast to Kapahulu Avenue extended to the sea; (2) easterly across KalakauaAvenue and easterly and northerly along Kapahulu Avenue to Waialae Avenue;(3) easterly along Waialae Avenue to a point one hundred feet easterlyof Saint Louis Drive; (4) northeasterly across Waialae Avenue then parallelto and one hundred feet from Saint Louis Drive and Alencastre Street tothe southerly boundary of Saint Louis Heights tract, series 2 (file plannumbered 464); (5) northeasterly along the southeasterly boundary of saidtract to the forest reserve boundary; (6) northeasterly along the top ridgeof Palolo Valley to the top of Waahila Ridge; (7) northeasterly along thetop 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 betweenthe lands of Waialae Nui and Palolo; (9) southwesterly along the top ofsaid ridge to a place called Kalepeamoa; (10) southwesterly along MauumaeRidge to Sierra Drive; (11) southwesterly along Sierra Drive to WaialaeAvenue; (12) easterly along Waialae Avenue to Thirteenth Avenue; (13) southwesterlyalong Thirteenth Avenue and Ocean View Drive to Kilauea Avenue; (14) westerlyalong Kilauea Avenue to Makapuu Avenue; (15) southwesterly along MakapuuAvenue to Diamond Head Road; and (16) southeasterly along Diamond HeadRoad to the military road and along the military road extended to the pointof beginning;

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

Eighteenth representative district: Theislands of Kauai and Niihau. Wherever a roadway or intersection of oneor 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, 70Stat 904]

CASE NOTES

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

§ 39. Apportionment of Representatives.

The electors in said representative districtsshall be entitled to elect representatives as follows, prior to the firstreapportionment: 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, 70Stat 906]

Cross References. - As to reapportionmentof representatives after the census, see § 55of 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 memberof 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 lessthan three years and shall be qualified to vote for representatives inthe district from which he is elected.

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

CASE NOTES

Former § 31of 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 legislatureshall 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 thirdWednesday in February. Regular sessions in odd number years shall be knownas general sessions and those in even number years shall be known as budgetsessions.

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

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

§ 42.

That neither house shall adjourn duringany session for more than three days, or sine die, without the consentof the other.

§ 43.

(a) General sessions shall be limitedto a period of sixty days and budget sessions and special sessions to aperiod of thirty days, but the Governor may extend any session for notmore than thirty days. Sundays and holidays shall be excluded in computingthe 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 atthe capital of the Territory. In case the capital shall be unsafe, theGovernor may direct that any session shall be held at some other placein 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 interestby lobbyists in both houses. - The legislature may adopt by concurrentresolution a single rule which is applicable to both the house and to thesenate, requiring the registration or revealing of interest by lobbyistsprior to any appearance before either the house or senate or a committeeof the house or senate. The sanctions against persons who fail to complywith such a rule are limited to appearances before the house and senateand committees thereof while in session. Neither house may punish an individualfor failure to comply with the rule while appearing before the other houseor a committee thereof. If it is the desire of the legislature to regulatethe activities of lobbyists beyond the scope of a rule adopted by a concurrentresolution, such restrictions must be enacted by either an act or a jointresolution having the force and effect of law in accordance with §§44 through 48 of the OrganicAct. Op. Att'y Gen. No. 59-23 (1959).

§ 45. Title of laws.

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

CASE NOTES

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

This section is mandatory, and the disregardingof 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 thatit 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. - Thetitle of an act may be broader than the act without violating this provision.However, the title, if restricted, must be the standard to determine thescope of the act, and the act cannot be broader than its title. In otherwords, the title fixes the bounds of the act, beyond which the legislaturemay not go. Territory v. Kua, 22 Haw. 307 (1914).

Reason for simple title. - Thewell-known reason for requiring a simple and explanatory title is in orderthat lawmakers may not be misled in passing bills containing subjects ofwhich 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 titleto an act amending a certain section of a certain chapter of the RevisedLaws expresses one branch or phase of the subject treated in such chapter,the amendatory act is thereby restricted; and a proviso therein relatingto a subject separate and distinct from that expressed in its title isvoid. Territory v. Kua, 22 Haw. 307 (1914).

Title to Act 99, Laws 1913, reading "AnAct to Amend Section 1323 of the Revised Laws as Amended by Act 151 ofthe Laws of 1909, Relating to the Issuance of Licenses," where thebody of the act contained a proviso relating to the payment of personaland property taxes, was misleading insofar as the matter contained in saidproviso 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, bywhich the legislature enacted a code revision as a whole by reference,did not violate this section and § 46 of theOrganic 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 areexpressed 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 newfeatures in territorial taxation not incidental to county organizationor government, was void under the provision of this section "thateach law shall embrace but one subject, which shall be expressed in itstitle," and said void portion was such an essential feature as tovitiate 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. HawaiianDredging 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 legislaturemay adopt by concurrent resolution a single rule which is applicable toboth the house and to the senate, requiring the registration or revealingof interest by lobbyists prior to any appearance before either the houseor senate or a committee of the house or senate. The sanctions againstpersons who fail to comply with such a rule are limited to appearancesbefore the house and senate and committees thereof while in session. Neitherhouse may punish an individual for failure to comply with the rule whileappearing before the other house or a committee thereof. If it is the desireof the legislature to regulate the activities of lobbyists beyond the scopeof a rule adopted by a concurrent resolution, such restrictions must beenacted by either an act or a joint resolution having the force and effectof law in accordance with §§ 44 through48 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 separatedays, the final passage of which in each house shall be by a majority voteof all the members to which such house is entitled, taken by ayes and noesand entered upon its journal.

CASE NOTES

Code revision. - Short act, bywhich the legislature enacted a code revision as a whole by reference,did not violate this section and § 45 of theOrganic 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 houseto the other.

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

OPINIONS OF ATTORNEY GENERAL

§ 48. Signing bills.

That, except as herein provided, all billspassed by the legislature shall, in order to be valid, be signed by thegovernor.

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 passedthe legislature shall be certified by the presiding officers and clerksof both houses, and shall thereupon be presented to the governor. If heapproves it, he shall sign it, and it shall become a law. If the governordoes not approve such bill, he may return it, with his objections, to thelegislature. He may veto any specific item or items in any bill which appropriatesmoney for specific purposes; but shall veto other bills, if at all, onlyas a whole.

CASE NOTES

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

§ 50. Procedure upon receipt of veto.

That upon the receipt of a veto messagefrom the governor each house of the legislature shall enter the same atlarge upon its journal and proceed to reconsider such bill, or part ofa bill, and again vote upon it by ayes and noes, which shall be enteredupon its journal.

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

§ 51. Failure to sign or veto.

That if the governor neither signs norvetoes a bill within ten days after it is delivered to him it shall becomea law without his signature, unless the legislature adjourns sine die priorto the expiration of such ten days.

If any bill shall not be returned by thegovernor within ten days (Sundays excepted) after it shall have been presentedto 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 whichcase it shall not be a law.

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

CASE NOTES

Pocket veto. - A pocket veto occursin the following situation: (a) the bill is passed by the legislature atthe regular session; (b) it is delivered to the governor after the legislatureadjourns the regular session sine die; (3) while the governor has it underconsideration, the legislature, composed of the same members as in theregular session, is convened in special session; (4) on the tenth day (Sundaysexcepted) 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 legislaturewith his objections. The legislature, by adjournment sine die of the regularsession, prevents the governor from returning the bill with his objectionsto the session that passed it. Hawaiian Airlines v. Public Utils. Comm'n,43 Haw. 216 (1959).

APPROPRIATIONS.

§ 52.

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

[Am May 27, 1910 c 258, § 3, 36 Stat444]

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. - Asto the propriety of participation by Hawaii in a joint utilization projectwith the federal government for use of national guard facilities and legislativeauthority 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 succeedingbiennial period or, if provision be made in accordance with section 41of this Act for additional regular sessions of the legislature, for thesucceeding fiscal year.

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

CASE NOTES

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

§ 54.

That in case of failure of the legislatureto pass appropriation bills providing for payments of the necessary currentexpenses of carrying on the government and meeting its legal obligationsas 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 theconsideration of appropriation bills, and until the legislature shall haveacted the treasurer may, with the advice of the governor, make such payments,for which purpose the sums appropriated in the last appropriation billshall be deemed to have been reappropriated. And all legislative and otherappropriations 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 extrasession called under the provisions of this section an item which was notfor a "necessary current expense of carrying on the government,"provided the matter covered by the appropriation was one for which an appropriationcould 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 providefor the necessary expenses of the government for the succeeding biennialperiod, and in its extra session immediately afterwards it passed completeappropriation bills for the first six months of the biennial period, andbills providing for a portion of the necessary expenses of the last 18months, but failed to provide for perhaps a half of the necessary expensesfor those 18 months on the supposition that those expenses would be borneby counties under an act which turned out to be void, the expenses so unprovidedfor could be paid out of the last appropriation bills by the treasurerwith the advice of the governor under this section. "The last appropriationbills," within the meaning of this section, were those of 1901 andnot 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 Territoryshall extend to all rightful subjects of legislation not inconsistent withthe Constitution and laws of the United States locally applicable. Thelegislature shall not grant to any corporation, association, or individualany special or exclusive privilege, immunity, or franchise without theapproval of Congress; nor shall it grant private charters, but it may bygeneral act permit persons to associate themselves together as bodies corporatefor manufacturing, agriculture, and other industrial pursuits, and forconducting the business of insurance, savings banks, banks of discountand deposit (but not of issue), loan, trust, and guaranty associations,for the establishment and conduct of cemeteries, and for the constructionand 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 thelegislature, nor shall any divorce be granted by the courts of the Territoryunless the applicant therefor shall have resided in the Territory for twoyears next preceding the application, but this provision shall not affectany action pending when this Act takes effect; nor shall any lottery orsale of lottery tickets be allowed; nor shall spirituous or intoxicatingliquors be sold except under such regulations and restrictions as the Territoriallegislature shall provide; nor shall any public money be appropriated forthe support or benefit of any sectarian, denominational, or private school,or any school not under the exclusive control of the government; nor shallthe government of the Territory of Hawaii, or any political or municipalcorporation or subdivision of the Territory, make any subscription to thecapital stock of any incorporated company, or in any manner lend its creditfor the use thereof; nor shall any debt be authorized to be contractedby or on behalf of the Territory, or any political or municipal corporationor subdivision thereof, except to pay the interest upon the existing indebtedness,to suppress insurrection, or to provide for the common defense, exceptthat in addition to any indebtedness created for such purposes the legislaturemay authorize loans by the Territory, or any such subdivision thereof,for the erection of penal, charitable, and educational institutions, andfor public buildings, wharves, roads, harbors, and other public improvements,but the total indebtedness of the Territory shall not at any time be extendedbeyond 10 per centum of the assessed value of the property in the Territoryand the total indebtedness of any such subdivision shall not at any timebe extended beyond 5 per centum of the assessed value of property in thesubdivision, as shown by the then latest assessments for taxation, whethersuch assessments are made in either case by the Territory or subdivision,but nothing in this Act shall prevent the refunding of any indebtednessat any time; nor shall any such loan be made upon the credit of the publicdomain or any part thereof; nor shall any bond or other instrument of anysuch indebtedness be issued unless made payable in not more than thirtyyears from the date of the issue thereof; nor shall any issue of bondsor other instruments of any such indebtedness be made after July 1, 1926,other than such bonds or other instruments of indebtedness in serial formmaturing in substantially equal annual instalments, the first instalmentto mature not later than five years from the date of the issue of suchseries, and the last instalment not later than thirty years from the dateof such issue; nor shall any such bond or indebtedness be issued or incurreduntil approved by the President of the United States: Provided, That thelegislature may by general act provide for the condemnation of propertyfor public uses, including the condemnation of rights of way for the transmissionof 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 membersof the house of representatives in the following manner: The total numberof representatives shall first be reapportioned among four basic areas;namely, (1) the island of Hawaii, (2) the islands of Maui, Molokai, Lanaiand Kahoolawe, (3) the island of Oahu and all other islands not specificallyenumerated, and (4) the islands of Kauai and Niihau, on the basis of thenumber of voters registered at the last preceding general election in eachof such basic areas and computed by the method known as the method of equalproportions, no basic area to receive less than one member. Upon the determinationof the total number of representatives to which each basic area is entitled,such total shall be reapportioned among the one or more representativedistricts within each basic area on the basis of the number of voters registeredat the last preceding general election within each of such representativedistricts and computed by the method known as the method of equal proportionsno representative district to receive less than one member. Upon any reapportionment,should the total number of voters registered in any representative districtbe less than one-half of the quotient obtained by dividing the total numberof voters registered in the Territory by the total number of members towhich the house is entitled, then, as part of such reapportionment, thebasic area within which such representative district lies shall be redistrictedby the governor in such manner that the total number of voters registeredin each new representative district therein shall be more than one-halfof such quotient.

The governor shall thereupon issue a proclamationshowing the results of such reapportionment, and such reapportionment shallbe effective for the election of members to such house for the next fivesucceeding legislatures.

Original jurisdiction is hereby vestedin the supreme court of the Territory to be exercised on the applicationof any registered voter, made within thirty days following the date specifiedabove, to compel, by mandamus or otherwise, the governor to perform theabove duty; and made within thirty days following the date of such proclamation,to compel, by mandamus or otherwise, the correction of any error made insuch reapportionment.

[Am May 27, 1910, c 258, § 4, 36Stat 444; July 9, 1921, c 42, § 302, 42 Stat 116; June 9, 1926, c512, §§ 1, 2, 44 Stat 710; Aug. 1, 1956, c 851, § 7, 70Stat 907; Aug. 20, 1958, Pub L 85-690, § 3, 72 Stat 684]

Historical note. - Congress, fromtime to time, has ratified territorial bond acts and has authorized particularissues. 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 theChronological Note of Acts Affecting Hawaii, RLH 1955, page 9. See also48 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 relationto territories in general, all of which may have been by implication inapplicableto Hawaii before the amendment of § 5 of the OrganicAct, and were made inapplicable expressly by that amendment. Pursuant tosection 73(c) of the Organic Act, certain land laws are not subject torepeal or amendment by the legislature without the approval of Congress.

By the Act of April 19, 1930, the HawaiiNational Park was removed from territorial jurisdiction except for certainpurposes therein stated.

Congress provided by Joint Resolutionof April 26, 1910 (36 Stat. 878) for a special election on prohibition,at which election the vote was against prohibition. See also the Act ofMay 23, 1918, c. 84, 40 Stat. 560, which was followed by the National ProhibitionAct, 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 inHawaii 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 totaxation, see the following Acts of general application throughout theUnited 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 theBuck 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 grantedbetween annexation and the establishment of territorial government, see§ 73 of the Organic Act. For franchises grantedby the territorial legislature and approved, with amendments, by Congress,see note 3 in Appendix of RLH 1945, page 1676, and list of acts in ChronologicalNote 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 Territoryis the fundamental law of the Territory of Hawaii; and by the provisionsof that Act the legislative power of the Territory is extended to all rightfulsubjects of the legislation not inconsistent with the Constitution andlaws 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 governmentof 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 deemedto supersede territorial law unless that intention is clear. Inter-IslandSteam Nav. Co. v. Hawaii, 305 U.S. 306, 59 S. Ct. 202, 83 L. Ed. 189 (1938).

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

Statute in conflict with executiveagreement of president violated section. - A statute of the Territoryof Hawaii which conflicted with an executive agreement made by the Presidentviolated 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 thatterm as employed in this section. Auto Rental Co. v. Lee, 35 Haw. 77 (1939).

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

Hawaiian Fair Trade Act violated thissection. - Hawaiian Fair Trade Act held in violation of this sectionas 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 "rightfulsubject 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 heldvalid under this section. - Former Act 96, S.L. 1907, requiring a licensefee of $5.00 for a fishing boat with a beam of 30 inches or more, was notvoid under § 95, Organic Act, repealing the lawsof the Republic of Hawaii, which conferred exclusive fishing rights anddeclaring that the fisheries in the sea waters of the Territory not includedin any fish pond or artificial enclosure would be free to all citizensof the United States. Congress did not intend that the business of fishingfor profit in the sea waters of the Territory should be free from policeregulation or taken out of the taxing power of the Territory, the objectbeing to do away with exclusive private rights of fishery in those waters.Nor was the act void as discriminatory class legislation or for unreasonablyclassifying boats required to be licensed or for prohibiting a useful occupationor denying to the defendant equal and uniform protection of the law, orfor conflicting with this section or with the Fourteenth Amendment of theUnited 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 valuablefood fish, and providing to that end a reasonable closed season, is a legitimateexercise of the police power, and within the grant of legislative powercontained in this section, and does not conflict in any way with the declarationcontained in § 95. Territory v. Hoy Chong, 21Haw. 39 (1912).

Waiver of unanimity of verdict requirement.- Unanimity of verdicts is essential under the provisions of the OrganicAct, 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. Pringlev. Hilo Mercantile Co., 13 Haw. 705 (1901).

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

Domicile of military personnel.- An officer or enlisted man in the United States Army or Navy, when permittedto establish a home outside of his military or naval station, may thusacquire a domicile, but cannot acquire a domicile when he is required toreside 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 performhis duties, does not prevent his forming the animus manendi and acquiringa domicile there. West v. West, 35 Haw. 461 (1940).

Garnishment of public officials.- As state senators are accustomed or entitled to draw their salaries fromthe clerk of the senate upon a warrant of the auditor, the garnishmentstatute authorizes garnishing each of those officials. The statute is notunconstitutional on the ground that it is against public policy that apercentage of the salaries of legislators, judges and governors, if paidby the Territory, should be subject to attachment for their debts. SeeSee Kong v. Chillingworth, 19 Haw. 428 (1909).

Cited in Coffield v. Territoryof Haw., 13 Haw. 478 (1901); Robertson v. Pratt, 13 Haw. 590 (1901); Territoryof 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); Territoryof Haw. v. Jacintho Miguel, 18 Haw. 402 (1907); Robinson v. Baldwin, 19Haw. 9 (1908); Lowrey v. Territory of Haw., 19 Haw. 123 (1908); Emmeluthv. 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); Inre 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); Territoryof 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); Territoryof Haw. v. Reyes, 33 Haw. 180 (1934); E.E. Black, Ltd. v. Conkling, 33Haw. 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.2d728 (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 "allrightful subjects of taxation." - The provision that the legislativepower 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 assessmentand 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 oflegislation," as employed in this section, is all-inclusive, and noimplication arises from the absence of a specific grant of the legislativepower to tax. Borthwick v. Veatch, 38 Haw. 188 (1948).

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

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

Congress intended to authorize legislatureto pass tax laws. - It was the intention of Congress by the OrganicAct to authorize the legislature to pass tax laws. Tomikawa v. Gama, 14Haw. 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 Constitutionof the United States and the Acts of Congress, and these powers includethe 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 ifadequate remedy at law exists. - The legislature of Hawaii has thegeneral power to legislate upon all questions of taxation in relation toproviding a local system of revenue to carry on the government of the Territoryof Hawaii, the only limitation being that such legislation shall not beinconsistent with the Constitution and laws of the United States, locallyapplicable, and where said legislature has enacted a local income tax law,the United States District Court will not interfere by injunction to restrainthe collection of taxes assessed under the law, where complainants havean adequate remedy at law. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

III. APPROPRIATIONS.

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

A statute providing for the dischargeof 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 specialor exclusive privilege does not apply to legislative acts authorizing paymentof 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 andequitable obligation of Territory. - It is proper for the territoriallegislature to appropriate any moneys in the public treasury to dischargethe moral and equitable obligations of the Territory. But in the absenceof a legal obligation to make such a payment, there must be at least amoral or equitable obligation to do so; otherwise the payment would notbe for a public purpose but would be a mere gratuity and beyond the powerof the legislature to make. In re Tavares, 26 Haw. 101 (1921).

Appropriations from City of Honolulugeneral fund to pay certain moral obligations. - Act authorizing specificappropriations from the general fund of the City of Honolulu for the particularobject of paying certain moral obligations of that municipality was anexercise of the legislative power of the Territory upon "rightfulsubjects of legislation" within the meaning of this section. JamesW. Glover, Ltd. v. Fong, 39 Haw. 308, appeal dismissed, 197 F.2d 710 (9thCir. 1952).

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

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

IV. DIVORCE.

Residence requirements for divorcesuit held mandatory and jurisdictional. - The provisions of the OrganicAct and the Hawaii statute as to the residence of the plaintiff precedingthe commencement of a suit for divorce were mandatory and jurisdictional,and a judge was without authority to grant a decree in the absence of proofof 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 legislativepower and designates lotteries mala prohibita. Territory v. Sur., 39 Haw.332 (1952).

VI. BONDS.

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

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

Highway bonds payable from specialfund did not conflict with section. - Statute authorizing the issuanceof interest-bearing improvement bonds by a city and county to defray thecost of highway improvements did not conflict with this section, wheresuch bonds were not a charge against or payable out of the general fundsof the municipality, but only a special fund composed of moneys collectedon account of assessments made for the improvement for which they wereissued. Von Damm v. Conkling, 23 Haw. 487 (1916).

VII. EMINENT DOMAIN.

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

Rehabilitation center for blind andphysically handicapped persons. - The superintendent of public worksdid not abuse his discretion in deciding that it was necessary to condemnland for use as a site for a rehabilitation center for blind and physicallyhandicapped 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 territoriallegislature on the basis of the population in each district. The purposeof 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, 256F.2d 728 (9th Cir. 1958).

Validity of act passed after failureto reapportion membership. - Whether the failure of the legislatureof the Territory of Hawaii, at its first regular session after the censusenumeration was ascertained, to reapportion the membership in the senateand house of representatives, as required by this section, rendered invalida statute enacted by the legislature subsequent to such requirement becomingeffective was a political question and not justiciable. Each house of thelegislature under the Organic Act was the judge of the elections, returnsand qualifications of its own members, which power, coupled with the well-recognizedindependence of the legislative branch of the government, forbade interferenceby 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, contemplatedthat the "benevolent" purpose be one of general welfare and ofdirect or indirect benefit to the public, rather than restricted to membersof a select group. Op. Att'y Gen. No. 59-165 (1959).

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

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

Power to redistrict or reapportionlegislature. - By virtue of Public Law 895, 84th Congress, 2d Session,70 Stat. 903 (the Reapportionment Act), expressly amending this sectionand 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 hisauthority only if the conditions set forth in this section as amended werefound to exist. Op. Att'y Gen. No. 59-6 (1959).

TOWN, CITY, AND COUNTY GOVERNMENT.

§ 56.

That the legislature may create countiesand town and city municipalities within the Territory of Hawaii and providefor the government thereof, and all officials thereof shall be appointedor elected, as the case may be, in such manner as shall be provided bythe governor and legislature of the Territory.

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

Cross References. - For countyact of 1905, and city and county act of 1907, see Chapters 52, 54, 61 to67, and 70. See also, 20 Stat. 101; 25 Stat. 336.

CASE NOTES

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

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

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

Authority of city of Honolulu to determinepayment of moral obligation implied by this section. - Authority ofthe legislature to delegate to the city of Honolulu its power to investigateand determine moral obligations of that city for purposes of payment thereofis implied from the language of this section, which authorizes the territoriallegislature to provide for the government of, as well as to create, countiesand towns and city municipalities. Such delegation by the legislature tothe legislative body of a political subdivision of the Territory is onewithin the same branch of government, comparable to the delegation of legislativepower by Congress to the territorial legislature. It therefore does notcome under the prohibition of the general doctrine against delegation oflegislative powers to other branches of government as a constitutionallimitation 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 actalready made penal by territorial statute. - Under legislative authorityto regulate all local police, sanitary and other regulations not in conflictwith the general laws of the Territory, a county had no power to prohibitby ordinance an act already made penal by territorial statute. Territoryv. McCandless, 18 Haw. 616 (1908).

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

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

ELECTIONS.

§ 57. Exemptions of electors on electionday.

That every elector shall be privilegedfrom arrest on election day during his attendance at election and in goingto and returning therefrom, except in case of breach of the peace thencommitted, or in case of treason or felony.

§ 58.

That no elector shall be so obliged toperform 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 hisplace of residence in actual military service, in which case provisionmay be made by law for taking his vote.

§ 59. Method of voting for representatives.

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

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

§ 60. Qualifications of voters for representatives.

That in order to be qualified to votefor representatives a person shall -

First. Be a citizen of the United States.

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

Third. Have attained the age of twenty-oneyears.

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

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

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

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

CASE NOTES

Former § 31of 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 qualificationsfor electors as effective as if expressed in municipal act. - Sections42 and 70 of the act incorporatingthe City and County of Honolulu (since repealed) were in conflict withthe provisions of the Organic Act relative to the qualifications of electorsand absolutely void. But the entire act was not thereby made inoperativeor invalid, the provisions of the Organic Act on the subject of qualificationsfor electors being as effective as if especially expressed in the municipalact, particularly in view of the fact that in former § 40they were declared to be applicable. Emmeluth v. Board of Supvrs., 19 Haw.171 (1908).

One who has no place of abode excepton steamer engaged in inter-island trade was not a resident of a particularprecinct within the meaning of the election laws, although the steamerwhen at Honolulu docked at a wharf in such precinct and Honolulu was herhome 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, 15Haw. 265 (1903).

OPINIONS OF ATTORNEY GENERAL

Alien who became naturalized citizena few days prior to a coming election held not eligible to vote in saidelection, since the person in question was not able to register priorto the closing of the county register. However, upon his registration,he would be entitled to vote in future state and local elections. Op. Att'yGen. 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 onevote for each senator to be elected from the senatorial district in whichhe is entitled to vote.

The required number of candidates receivingthe highest number of votes in the respective senatorial districts shallbe the senators for such district.

§ 62. Qualifications of voters for senatorsand in all other elections.

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

CASE NOTES

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

Provisions of Organic Act on qualificationsfor electors as effective as if expressed in municipal act. - Sections42 and 70 of the act incorporatingthe City and County of Honolulu (since repealed) were in conflict withthe provisions of the Organic Act relative to the qualifications of electorsand absolutely void. But the entire act was not thereby made inoperativeor invalid, the provisions of the Organic Act on the subject of qualificationsfor electors being as effective as if especially expressed in the municipalact, 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).

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

OPINIONS OF ATTORNEY GENERAL

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

§ 63.

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

OPINIONS OF ATTORNEY GENERAL

Serviceman merely stationed in Hawaiinot resident. - The intention of this section is clearly to providethat no person attached to the armed forces of the United States becomesa resident of Hawaii merely by reason of being in Hawaii by virtue of beingstationed here as a serviceman. Op. Att'y Gen. No. 60-119 (1960).

§ 64.

That the rules and regulations for administeringoaths 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 proclamationand sections one to twenty-six, inclusive, sections thirty and thirty-nine,the second and third paragraphs of section forty-eight, the second paragraphof section fifty, and sections sixty-two, sixty-three, and sixty-six, secondparagraph of section one hundred.

In section twenty-nine strike out allafter the word "Niihau" and in lieu thereof insert: "Theboards of registration existing at the date of the Approval of this Actshall go out of office, and new boards, which shall consist of three memberseach, shall be appointed by the governor, by and with the advice and consentof the senate, whose terms of office shall be four years. Appointmentsmade by the governor when the senate is not in session shall be valid untilthe succeeding meeting of that body."

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

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

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

Strike out of section fifty-three thewords "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" whereverthey occur and insert in lieu thereof the words "secretary of theTerritory."

In section fifty-six, paragraph three,strike out "interior office" and insert "office of the secretaryof the Territory." In section fifty-six, first paragraph, after thewords "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 "ministerof the interior" or "minister" wherever they occur and insertin lieu thereof the word "governor."

Amend section sixty-seven so that it willread: "At least forty days before any election the governor shallissue an election proclamation and transmit copies of the same to the severalboards of inspectors throughout the Territory, or where such election isto be held."

In section seventy-five strike out theword "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 "officeof the secretary of the Territory." In section one hundred and fourteenstrike out the word "Republic" wherever it occurs and insertin lieu thereof "Territory."

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

CASE NOTES

As to the validity of former § 31 of the OrganicAct, relating to filing of nomination papers by candidates, see Chandlerv. 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 Territorymay from time to time establish and alter the boundaries of election districtsand voting precincts and apportion the senators and representatives tobe elected from such districts.

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

OPINIONS OF ATTORNEY GENERAL

Legislature has no power to redistrictor 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 ofthe Organic Act, the legislature had no power to redistrict or reapportionthe legislature; such powers were vested solely in the governor, who couldexercise 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 governmentof the Territory of Hawaii shall be vested in a governor, who shall beappointed by the President, by and with the advice and consent of the Senateof the United States, and shall hold office for four years and until hissuccessor shall be appointed and qualified, unless sooner removed by thePresident. He shall be not less than thirty-five years of age; shall bea citizen of the Territory of Hawaii; shall have resided therein for atleast three years next preceding his appointment; shall be commander inchief of the militia thereof, and may grant pardons or reprieves for offensesagainst the laws of said Territory and reprieves for offenses against thelaws of the United States until the decision of the President is made knownthereon.

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

CASE NOTES

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

Supreme court of Hawaii was an intermediatecourt of appeal in a case where the appellant had the right of appealfrom an adverse decision by the supreme court of the United States CircuitCourt of Appeals for the Ninth Circuit and a decision by the supreme courton a former appeal of the cause did not become the law of the case. Goov. 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 responsiblefor the faithful execution of the laws of the United States and of theTerritory of Hawaii within the said Territory, and whenever it becomesnecessary he may call upon the commanders of the military and naval forcesof 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 lawlessviolence, invasion, insurrection, or rebellion in said Territory, and hemay, in case of rebellion or invasion, or imminent danger thereof, whenthe public safety requires it, suspend the privilege of the writ of habeascorpus, or place the Territory, or any part thereof, under martial lawuntil communication can be had with the President and his decision thereonmade known.

Historical note. - The privilegeof the writ of habeas corpus was suspended and the Territory was placedunder martial law on the afternoon of December 7, 1941. Proclamation ofmartial law was modified September 2, 1942, and February 8, 1943. Martiallaw terminated and the privilege of the writ was restored by PresidentialProclamation 2627, October 18, 1944, effective October 24, 1944, 9 F.R.12831, and Governor's proclamation of October 24, 1944. For military powersthereafter see Executive Order 9489, October 18, 1944, effective October24, 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 takenas the fundamental law of the territory; and all territorial legislativeassemblies derive their force and validity from such Organic Acts. Achiv. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

The right to establish martial law springsfrom the necessity arising from disorders that disrupt and make inoperativecivil government, and it ceases and becomes unlawful as soon as the civilgovernment is capable and willing to resume its normal functions. Ex parteDuncan, 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 intheir own sphere without hindering the military, it could not be said thatit was reasonably necessary from a military viewpoint to try civiliansin provost courts. Ex parte Spurlock, 66 F. Supp. 997 (D. Haw. 1944).

Martial law is not intended to authorizesupplanting of courts by military tribunals. - The phrase "martiallaw," while intended to authorize the military to act vigorously forthe maintenance of an orderly civil government and for the defense of theislands against actual or threatened rebellion or invasion, was not intendedto 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 commandinggeneral of the Hawaiian Department, who was military governor under orderof 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. Suchbeing the case, the governor's suspension until further notice of the privilegeof the writ of habeas corpus, with the approval of the President, was authorizedby 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 Presidentor any minister of the Republic of Hawaii (acting alone or in connectionwith 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; actingsecretary.

That there shall be a secretary of thesaid Territory, who shall be appointed by the President, by and with theadvice and consent of the Senate of the United States, and who shall bea citizen of the Territory of Hawaii and hold his office for four yearsand until his successor shall be appointed and qualified, unless soonerremoved by the President. He shall record and preserve all the laws andproceedings of the legislature and all acts and proceedings of the governor,and promulgate proclamations of the governor. He shall, within thirty daysafter the end of each session of the legislature, transmit to the President,the President of the Senate, and the Speaker of the House of Representativesof 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 asmay be required of him by the legislature of Hawaii.

The secretary may, with the approval ofthe governor, designate some other officer of the government of the Territoryof Hawaii to act as secretary during his temporary absence or during hisillness. Such designation and approval shall be in writing and shall befiled in the office of the governor, and a copy thereof, certified by thegovernor, shall be filed in the office of the Secretary of the Interiorof the United States. Such person so designated shall, during the temporaryabsence or illness of the secretary, be known as the acting secretary ofthe Territory of Hawaii, and shall have and exercise all the powers andduties of the secretary, except those provided for by section 70 of thisAct (U.S.C., title 48, § 535). Such acting secretary shall serve withoutadditional compensation, but the secretary shall be responsible and liableon his official bond for all acts done by the acting secretary in the performanceof 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 secretaryshall exercise all the powers and perform all the duties of governor duringsuch vacancy, disability, or absence, or until another governor is appointedand qualified.

§ 71. Attorney-general.

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

CASE NOTES

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

§ 72. Treasurer.

That there shall be a treasurer, who shallhave the powers and duties of the minister of finance and those of thepowers and duties of the minister of the interior which relate to licenses,corporations, companies, and partnerships, business conducted by marriedwomen, newspapers, registry of conveyances, and registration of prints,labels, and trademarks under the laws of Hawaii, except as changed in thisAct 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" meansthe 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 orcrown lands previous to August 15, 1895, or acquired by the governmentupon or subsequent to such date by purchase, exchange, escheat, or theexercise 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 ofsubdivision (q) of this section, (4) sites of public buildings, lands usedfor roads, streets, landings, nurseries, parks, tracts reserved for forestgrowth or conservation of water supply, or other public purposes, and (5)lands to which the United States has relinquished the absolute fee andownership, unless subsequently placed under the control of the commissionerand given the status of public lands in accordance with the provisionsof this Act, the Hawaiian Homes Commission Act, 1920, or the Revised Lawsof Hawaii of 1915; and

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

(b) Any term defined or described in section347 or 351 of the Revised Laws of Hawaii of 1915, except a term definedin 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 publiclands, the settlement of boundaries, and the issuance of patents on landcommission awards, except as changed by this Act, shall continue in forceuntil Congress shall otherwise provide. Subject to the approval of thePresident, all sales, grants, leases, and other dispositions of the publicdomain, and agreements concerning the same, and all franchises grantedby the Hawaiian government in conformity with the laws of Hawaii, betweenthe 7th day of July, 1898, and the 28th day of September, 1899, are herebyratified and confirmed. In said laws "land patent" shall be substitutedfor "royal patent"; "commissioner of public lands,"for "minister of the interior," "agent of public lands,"and "commissioners of public lands," or their equivalents; andthe words "that I am a citizen of the United States," or "thatI 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 havereceived letters of denization under the Republic of Hawaii," or "thatI have received a certificate of special right of citizenship from theRepublic of Hawaii."

(d) No lease of the surface of agriculturelands or of undeveloped and public land which is capable of being convertedinto agricultural land by the development, for irrigation purposes, ofeither the underlying or adjacent waters, or both, shall be granted, sold,or renewed by the government of the Territory of Hawaii for a longer periodthan sixty-five years. Each such lease shall be sold at public auctionto the highest bidder after due notice as provided in subdivision (i) ofthis section and the laws of the Territory of Hawaii. Each such noticeshall state all the terms and conditions of the sale. The land, or anypart thereof so leased, may at any time during the term of the lease bewithdrawn from the operation thereof for homestead or public purposes,upon the payment of just compensation for such withdrawal. Every such leaseshall contain a provision to that effect: Provided, That the commissionermay, with the approval of the governor and at least two-thirds of the membersof the land board, omit such withdrawal provision from, or limit the samein, the lease of any lands whenever he deems it advantageous to the Territoryof 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 orlease or other disposal of public land shall be appropriated by the lawsof the government of the Territory of Hawaii and applied to such uses andpurposes for the benefit of the inhabitants of the Territory of Hawaiias are consistent with the joint resolution of annexation, approved July7, 1898.

(f ) No person shall be entitled to receiveany certificate of occupation, right of purchase lease, cash freehold agreement,or special homestead agreement who, or whose husband or wife, has previouslytaken 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 homesteadlease or patent based thereon; or who, or whose husband or wife, or bothof them, owns other land in the Territory, the combined area of which andthe land in question exceeds eighty acres; or who is an alien, unless hehas declared his intention to become a citizen of the United States asprovided by law. No person who has so declared his intention and takenor held under any such certificate, lease, or agreement shall continueso 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 suchcertificate, lease, or agreement is issued after May 27, 1910, or any partthereof, or interest therein or control thereof, shall, without the writtenconsent of the commissioner and governor, thereafter, whether before orafter a homestead lease or patent has been issued thereon, be or be contractedto be in any way, directly or indirectly, by process of law or otherwise,conveyed, mortgaged, leased, or otherwise transferred to, or acquired orheld by or for the benefit of, any alien or corporation; or before or afterthe issuance of a homestead lease or before the issuance of a patent toor by or for the benefit of any other person; or, after the issuance ofa 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, thecombined area of which and the land in question exceeds eighty acres. Theprohibitions of this paragraph shall not apply to transfers or acquisitionsby inheritance or between tenants in common.

(h) Any land in respect of whichany of the foregoing provisions shall be violated shall forthwith be forfeitedand resume the status of public land and may be recovered by the Territoryor 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, withthe approval of the governor before patent has been issued, with or withoutlegal process, notice, demand, or previous entry, to retake possessionand thereby determine the estate: Provided, That the times limited forcompliance with any such approval upon its appearing that an effort hasbeen made in good faith to comply therewith.

(i) The persons entitled to take underany such certificate, lease, or agreement shall be determined by drawingor lot, after public notice as hereinafter provided; and any lot not takenor taken and forfeited, or any lot or part thereof surrendered with theconsent of the commissioner, which is hereby authorized, may be disposedof 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 notless than sixty days in one or more newspapers of general circulation publishedin the Territory: Provided however, That (1) lots may be sold forcash or on an extended time basis, as the Commissioner may determine, withoutrecourse to drawing or lot and forthwith patented to any citizen of theUnited States applying therefor, possessing the qualifications of a homesteaderas now provided by law, and who has qualified for and received a loan underthe provisions of the Bankhead-Jones Farm Tenant Act, as amended or asmay hereafter be amended, for the acquisition of a farm, and (2) with orwithout recourse to drawing or lot, as the commissioner may determine,lots may be leased with or without a right of purchase, or may be soldfor cash or on an extended time basis and forthwith patented, to any citizenof the United States applying therefor if such citizen has not less thantwo years' experience as a farm owner, farm tenant, or farm laborer: Andprovided further, That any patent issued upon any such sale shall containthe same restrictive provisions as are now contained in a patent issuedafter compliance with a right of purchase lease, cash freehold agreement,or special homestead agreement.

The Commissioner may include in any patent,agreement, or lease a condition requiring the inclusion of the land inany irrigation project formed or to be formed by the Territorial agencyresponsible therefor and making the land subject to assessments made orto be made for such irrigation project, which assessment shall be a firstcharge against the land. For failure to pay the assessments or other breachof the condition the land may be forfeited and sold pursuant to the provisionsof this Act, and, when sold, so much of the proceeds of sale as are necessarytherefor may be used to pay any unpaid assessments.

( j) The commissioner, with the approvalof the governor, may give to any person (1) who is a citizen of the UnitedStates or who has legally declared his intention to become a citizen ofthe United States and hereafter becomes such, and (2) who has, or whosepredecessors in interest have, improved any parcel of public lands andresided thereon continuously for the ten years next preceding the applicationto purchase, a preference right to purchase so much of such parcel andsuch adjoining land as may reasonably be required for a home, at a fairprice to be determined by three disinterested citizens to be appointedby the governor. In the determination of such purchase price the commissionermay, if he deems it just and reasonable, disregard the value of the improvementson such parcel and adjoining land. If such parcel of public lands is reservedfor public purposes, either for the use of the United States or the Territoryof Hawaii, the commissioner may with the approval of the governor grantto such person a preference right to purchase public lands which are ofsimilar character, value, and area, and which are situated in the sameland district. The privilege granted by this paragraph shall not extendto any original lessee or to an assignee of an entire lease of public lands.

(k) The commissioner may also, with suchapproval, issue, for a nominal consideration, to any church or religiousorganization, or person or persons or corporation representing it, a patentfor any parcel of public land occupied continuously for not less than fiveyears heretofore and still occupied by it as a church site under the lawsof Hawaii.

(l) No sale of lands for other than homesteadpurposes, except as herein provided, and no exchange by which the Territoryshall convey lands exceeding either forty acres in area or $15,000 in valueshall be made. Leases may be made by the commissioner of public lands,with the approval of two-thirds of the members of the board of public lands,for the occupation of lands for general purposes, or for limited specifiedpurposes (but not including leases of minerals or leases providing forthe mining of minerals), for terms up to but not in excess of sixty-fiveyears. There shall be a board of public lands, the members of which areto be appointed by the governor as provided in section 80 of this Act,and until the legislature shall otherwise provide said board shall consistof six members, and its members be appointed for a term of four years:Provided, however, That the commissioner shall, with the approval of saidboard, sell to any citizen of the United States, or to any person who haslegally declared his intention to become a citizen, for residence purposeslots not exceeding three acres in area; but any lot not sold after publicauction, or sold and forfeited, or any lot or part thereof surrenderedwith the consent of the commissioner, which consent is authorized, mayupon application be sold without further public notice or auction withinthe period of two years immediately subsequent to the day of the publicauction, at the advertised price if the sale is within the period of sixmonths immediately subsequent to the day of the public auction, and atthe advertised price or the price fixed by a reappraisal of the land, whicheveris greater, if the sale is within the period subsequent to the said sixmonths but prior to the expiration of the said two years: and that salesof Government lands or any interest therein may be made upon the approvalof said board for business uses or other undertakings or uses, except thosewhich are primarily agricultural in character, whenever such sale is deemedto be in the interest of the development of the community or area in whichsaid lands are located, and all such sales shall be limited to the amountactually necessary for the economical conduct of such business use or otherundertaking or use: Provided further, That no exchange of Government landsshall hereafter be made without the approval of two-thirds of the membersof said board, and no such exchange shall be made except to acquire landsdirectly for public uses: Provided further, That in case any lands havebeen or shall be sold pursuant to the provisions of this paragraph forany purpose above set forth and/or subject to any conditions with respectto the improvement thereof or otherwise, and in case any said lands havebeen or shall be used by the United States of America, including any departmentor agency thereof, whether under lease or license from the owner thereofor otherwise, for any purpose relating to war or the national defense andsuch use has been or shall be for a purpose other than that for which saidlands were sold and/or has prevented or shall prevent the performance ofany conditions of the sale of said lands with respect to the improvementthereof or otherwise, then, notwithstanding the provisions of this paragraphor of any agreement, patent, grant, or deed issued upon the sale of saidlands, such use of said lands by the United States of America, includingany department or agency thereof, shall not result in the forfeiture ofsaid lands and shall result in the extension of the period during whichany conditions of the sale of said lands may be complied with for an additionalperiod equal to the period of the use of said lands by the United Statesof America, including any department or agency thereof.

(m) Whenever twenty-five or more persons,having the qualifications of homesteaders who have not therefore made applicationunder this Act shall make written application to the commissioner of publiclands for the opening of agricultural lands for settlement in any localityor district, it shall be the duty of said commissioner to proceed expeditiouslyto survey and open for entry agricultural lands, whether unoccupied orunder lease with the right of withdrawal, sufficient in area to providehomesteads for all such persons, together with all persons of like qualificationswho shall have filed with such commissioner prior to the survey of suchlands written applications for homesteads in the district designated insaid applications. The lands to be so opened for settlement by said commissionershall be either the specific tract or tracts applied for or other suitableand available agricultural lands in the same geographical district and,as far as possible, in the immediate locality of and as nearly equal tothat applied for as may be available: Provided, however, That no leasedland, under cultivation, shall be taken for homesteading until any cropsgrowing thereon shall have been harvested.

(n) It shall be the duty of the commissionerto cause to be surveyed and opened for homestead entry a reasonable amountof desirable agricultural lands and also of pastoral lands in the variousparts of the Territory for homestead purposes on or before January 1, 1911,and he shall annually thereafter cause to be surveyed for homestead purposessuch amount of agricultural lands and pastoral lands in various parts ofthe Territory as there may be demand for by persons having the qualificationsof homesteaders. In laying out any homestead the commissioner shall includein the homestead lands sufficient to support thereon an ordinary family,but not exceeding eighty acres of agricultural lands and two hundred andfifty acres of first-class pastoral lands or five hundred acres of second-classpastoral lands; or in case of a homestead, including pastoral lands only,not exceeding five hundred acres of first-class pastoral lands or one thousandacres of second-class pastoral lands. All necessary expenses for surveyingand opening any such lands for homesteads shall be paid for out of anyfunds of the territorial treasury derived from the sale or lease of publiclands, which funds are hereby made available for such purposes.

(o) The commissioner, with the approvalof the governor, may by contract or agreement authorize any person whohas the right of possession, under a general lease from the Territory,of agricultural or pastoral lands included in any homestead, to continuein possession of such lands after the expiration of the lease until suchtime as the homesteader takes actual possession thereof under any formof homestead agreement. The commissioner may fix in the contract or agreementsuch other terms and conditions as he deems advisable.

(p) Nothing herein contained shall beconstrued to prevent said commissioner from surveying and opening for homesteadpurposes and as a single homestead entry public lands suitable for bothagricultural and pastoral purposes, whether such lands be situated in onebody or detached tracts, to the end that homesteaders may be provided withboth agricultural and pastoral lands wherever there is demand therefor;nor shall the ownership of a residence lot or tract, not exceeding threeacres in area, hereafter disqualify any citizen from applying for and receivingany form of homestead entry, including a homestead lease.

(q) All lands in the possession, use,and control of the Territory shall hereafter be managed by the commissioner,except such as shall be set aside for public purposes as hereinafter provided;all sales and other dispositions of such land shall, except as otherwiseprovided by the Congress, be made by the commissioner or under his direction,for which purpose, if necessary, the land may be transferred to his departmentfrom any other department by direction of the governor, and all patentsand deeds of such land shall issue from the office of the commissioner,who shall countersign the same and keep a record thereof. Lands conveyedto the Territory in exchange for other lands that are subject to the landlaws of Hawaii, as amended by this Act, shall, except, as otherwise provided,have the same status and be subject to such laws as if they had previouslybeen public lands of Hawaii. All orders setting aside lands for forestor other public purposes, or withdrawing the same, shall be made by thegovernor, and lands while so set aside for such purposes may be managedas may be provided by the laws of the Territory; the provisions of thisparagraph may also be applied where the "public purposes" arethe uses and purposes of the United States, and lands while so set asidemay be managed as may be provided by the laws of the United States. Thecommissioner is hereby authorized to perform any and all acts, prescribeforms of oaths, and, with the approval of the governor and said board,make such rules and regulations as may be necessary and proper for thepurpose of carrying the provisions of this section and the land laws ofHawaii into full force and effect.

All officers and employees under the jurisdictionof the commissioner shall be appointed by him, subject to the Territoriallaws of Hawaii relating to the civil service of Hawaii, and all such officersand employees shall be subject to such civil service laws.

Within the meaning of this section, themanagement of lands set aside for public purposes may, if within the scopeof authority conferred by the legislature, include the making of leasesby the Hawaii aeronautics commission with respect to land set aside toit, on reasonable terms, for carrying out the purposes for which such landwas set aside to it, such as for occupancy of land at an airport for facilitiesfor carriers or to serve the traveling public. No such lease shall continuein effect for a longer term than fifty-five years. If, at the time of theexecution of any such lease, the governor shall have approved the same,then and in that event the governor shall have no further authority underthis or any other Act to set aside any or all of the lands subject to suchlease for any other public purpose during the term of such lease.

(r) Whenever any remnant of public landshall be disposed of, the commissioner of public lands shall first offerit to the abutting landowner for a period of three months at a reasonableprice in no event to be less than the fair market value of the land tobe sold, to be determined by a disinterested appraiser or appraisers, butnot more than three, to be appointed by the governor; and, if such ownerfails to take the same, then such remnant may be sold at public auctionat no less than the amount of the appraisal: Provided, That if theremnant abuts more than one separate parcel of land and more than one ofthe owners of these separate parcels are interested in purchasing saidremnant, the remnant shall be sold to the owner making the highest offerabove the appraised value.

The term "remnant" shall meana parcel of land landlocked or without access to any public highway, and,in the case of an urban area, no larger than five thousand square feetin size, or, in the case of a suburban or rural area, no larger than oneand one-half acres in size.

Any person or persons holding an unpatentedhomestead under a special homestead agreement, entered into prior to theeffective date of this paragraph, excluding those homesteads under thecontrol of the Hawaiian Homes Commission as provided in section 203 ofthe Hawaiian Homes Commission Act, 1920, shall be entitled to a reamortizationof the indebtedness due the Territory of Hawaii on account of such specialhomestead agreement upon filing an application for the reamortization ofsaid indebtedness with the commissioner within six months after the effectivedate of this paragraph. Upon the filing of any such application, the commissionershall determine the balance due the Territory in the following manner:The amount of the principal which would have been paid during the fullperiod of payment provided for in the special homestead agreement had theagreement been duly performed according to its terms and the amount ofthe interest which would have been paid under the special homestead agreementprior to the effective date of this paragraph had the agreement been dulyperformed according to its terms shall be computed and added together;from the sum of these amounts there shall be deducted all moneys that havebeen actually paid to the Territory on account of the special homesteadagreement, whether as principal or as interest. The balance thus determinedshall be the total amount remaining due and payable for the homestead coveredby such special homestead agreement, any other terms, conditions, or provisionsin any of said agreements, or any provisions of law to the contrary notwithstanding:Provided, however, That nothing herein contained shall be deemed to excusethe payment of taxes and other charges and assessments upon unpatentedhomestead lands as provided in said agreements, nor to excuse or modifyany term, condition, or provision of said agreements other than such asrelate to the principal and interest payable to the Territory. The totalamount remaining due, determined as hereinabove provided, shall be payablein fifteen equal biennial installments. Simple interest at the rate ofthree per centum per annum shall be charged upon the unpaid balance ofsuch installments, whether matured or unmatured, said interest to be computedfrom the effective date of this paragraph and to be payable semi-annually.The first payment on account of principal shall be due two years subsequentto the effective date of this paragraph, and thereafter the due dates ofprincipal payments shall be at regular two-year periods; the first paymenton account of interest shall be due six months subsequent to the effectivedate of this paragraph, and thereafter the due dates of interest paymentsshall be at regular six-month periods. In case of default in payments ofprincipal or interest on the due dates as hereby fixed the commissionermay, with the approval of the governor, with or without legal process,notice, demand, or previous entry, take possession of the land coveredby any such special homestead agreement and thereby determine the estatecreated by such agreement as hereby modified, whereupon liability for paymentof any balance then due under such special homestead agreement shall terminate.When the aforesaid payments have been made to the Territory of Hawaii,and all taxes, charges, and assessments upon the land have been paid asprovided by said agreements, and all other conditions therein stipulatedhave been complied with, except as herein excused or modified, the saidspecial homestead agreements shall be deemed to have been performed bythe holders thereof, and land-patent grants covering the land describedin such agreements shall be issued to the parties mentioned therein, ortheir heirs or assigns, as the case may be.

Neither the Territory of Hawaii nor anyof its officers, agents or representatives shall be liable to any holderof any special homestead agreement, past or present, whether or not a patentshall have issued thereon, or to any other person, for any refund or reimbursementon account of any payment to the Territory in excess of the amount determinedas provided by the preceding paragraph, and the legislature shall not recognizeany obligation, legal or moral, on account of such excess payments.

[Am April 2, 1908, c 124, 35 Stat 56;May 27, 1910, c 258, § 5, 36 Stat 444; July 9, 1921, c 42, §§304 to 311, 42 Stat 116; July 27, 1939, c 383, 53 Stat 1126; June 12, 1940,c 336, 54 Stat 345; Aug. 21, 1941, c 394, 55 Stat 568; Sept. 26, 1941,c 426, 55 Stat 734; Aug. 7, 1946, c 771, 60 Stat 871; July 9, 1952, cc616, 617, 66 Stat 514, 515; April 6, 1956, c 180, § 1 and c 185, §1, 70 Stat 102, 104; Aug. 1, 1956, c 820, § 1 and c 859, 70 Stat 785,918; July 18, 1958, Pub L 85-534, § 1, 72 Stat 379; Aug. 14, 1958,Pub L 85-650, § 2, 72 Stat 606; Aug. 21, 1958, Pub L 85-718, 72 Stat709; Aug. 28, 1958, Pub L §§ 1, 2, 72 Stat 971; L 1959, JR 21,§ 1 am and rat L 1960, c 15, § 2]

Historical note. - The effectivedate of the last two paragraphs of this section was June 12, 1940. TheAct of July 10, 1937, c. 484, 50 Stat. 508, 48 U.S.C. § 562g, providesin part: "That the Legislature of the Territory of Hawaii may createa public corporate authority to engage in slum clearance, or housing undertakings,or both, within such Territory. . . . The legislature . . . may, withoutregard to any federal Acts restricting the disposition of public landsof the Territory, authorize the commissioner of public lands, the Hawaiianhomes commissioners, and any other officers of the Territory having powerto manage and dispose of its public lands, to grant, convey, or lease tosuch authority parts of the public domain, and may provide that any ofthe public domain or other property acquired by such authority may be mortgagedby it as security for its bonds. . . ."

The Act of February 27, 1920, c. 89, 41Stat. 452, 16 U.S.C. § 392, provided that the provisions of section73 relating to exchanges should not apply with respect to the acquisitionof privately owned lands within Hawaii National Park.

The Act of August 7, 1946, c. 787, 60Stat. 884, provided that the provisions relating to exchange should notapply to the acquisition of certain lands in Hilo.

See the Act of August 24, 1954, c. 888,68 Stat. 781, authorizing the commissioner of public lands to sell publiclands to certain lessees, permittees and others.

The amendments of July 9, 1921, are partof the "Hawaiian Homes Commission Act, 1920." See Joint Resolutionof annexation and the note thereto, RLH 1955, page 13, in regard to thecession of public lands to the United States, their status, dispositionthereof, application of the proceeds thereof, and grants of franchises,between annexation and the establishment of territorial government. SeeChronological Note of Acts Affecting Hawaii for Acts of Congress, Presidentialproclamations and Executive orders relating to public lands, RLH 1955,page 9ff. See also the note to §§ 75, 89,91, 95, 97and 99 of the Organic Act on public lands. As to shores,harbors, etc. see § 106 the Organic Act. Quaere,whether the federal statute, 29 Stat. 618, 8 U.S.C.A. 71-77 (see now 48U.S.C. §§ 1501 to 1508), relating to disabilities of aliens tohold land in territories in general applies to Hawaii.

For related federal acts, see the Actof April 6, 1956, c. 184, 70 Stat. 104, and the Act of Aug. 20, 1958, Pub.L. 85-694, 72 Stat. 686, authorizing the amendment of certain patents ofgovernment lands by removing the conditions therein restricting use ofsuch lands. See also the Act of August 18, 1958, Pub. L. 85-677, 72 Stat.628, granting the status of public lands to certain reef lands.

In addition, see Chapter 173. Furthermore,see the Act of August 21, 1958, Pub. L. 85-713, 72 Stat. 707, authorizingthe exchange of public lands for private lands of equal value requiredfor highway purposes.

Moreover, see the Act of August 28, 1958,Pub. L. 85-834, 72 Stat. 987, permitting certain sales and exchanges ofpublic lands to persons who suffered substantial real property losses dueto the tidal wave of March 9, 1957.

For related territorial acts, effectiveupon approval by Congress of legislation making the acts valid withoutapproval by Congress, or upon ratification by the state legislature, seeL. 1957, c. 39, permitting holders of certain public lands to mortgagethe land without necessity of obtaining governor's consent. See also L.1959, c. 180, s. 2, amending the second paragraph of this section 73(r)to read: "The term 'remnant' shall mean a parcel of land unsuitablefor development as a separate unit, and, in case of an urban area, no largerthan five thousand square feet in size, or in case of a suburban or ruralarea, no larger than one and one-half acres in size." In addition,see L. 1959, c. 269, authorizing the subdivision, improvement and leasingof public lands for residential purposes to qualified persons selectedby drawing without public auction. Furthermore, see L. 1959, J.R. 2, s.1, amending this section 73(g) by adding to the first sentence provisoto read: "Provided, That if consent be given to a mortgage or othertransfer for security purposes to an established lending agency and suchagency be the Federal Housing Administration or other similar federal orterritorial agency or a corporation authorized to do business as a lendingagency in the Territory or elsewhere in the United States, no further consentshall be required for: (1) any subsequent assignment or reassignment madeby such agency or assignee thereof to a like lending agency for refinancingor other security purposes; or (2) any transfer made at a foreclosure saleheld pursuant to the provisions of said mortgage or transfer for securitypurposes; or (3) any subsequent transfer made by the purchaser at saidforeclosure sale if the transferor shall be such agency or assignee thereof,provided that all other or further disposition shall be made only in accordancewith the provisions of this act."

Cross References. - As to continuationof existing homestead rights and removal of certain restrictions, see §171-97 et seq.

CASE NOTES

Validity of patent. - A patentissued in due form of law, valid on its face, may be attacked and declaredvoid in an action at law provided the evidence shows it to be void forwant of authority for its issue. When the land covered by a patent hasbeen previously granted, reserved from sale or appropriated, the patentis void for want of authority for its issue. Territory of Haw. ex rel.Bailey v. Robinson, 25 Haw. 651 (1920).

Assignment of mortgage. - A mortgageof a homestead could not be assigned without the consent in writing ofthe commissioner of public lands and the governor. Osorio v. Patterson,27 Haw. 1 (1923).

Authority of commissioner to sell land.- The former proviso of this section which gave discretionary authorityto the commissioner of public lands to sell public lands in the interestof the development of the community or area in which the lands were locateddid not unlawfully delegate legislative authority in violation of U.S.Const., Art. I, § 1. Fasi v. King, 41 Haw. 461 (1956).

Withdrawal of leased lands. - Theauthority granted by this section includes the power to withdraw leasedlands when it is desired to devote them to homestead purposes or to devotethem to public purposes. It does not include the power to withdraw themin order that with their proceeds other lands can be acquired which inturn will be cut up into homesteads or used for other public purposes.Chung K. Ai v. Bailey, 30 Haw. 210 (1927).

The withdrawal of leased lands for publicpurposes encompasses uses of the United States as well as the state. UnitedStates v. Marks, 187 F.2d 724 (9th Cir.), cert. denied, 342 S. Ct. 823,72 S. Ct. 42, 96 L. Ed. 622 (1951).

A lawful withdrawal of land for anyof the purposes embodied in lease would result in a determination ofthe lease, and lessee had no claim because under such a circumstance heexpressly renounced all claim to the improvements and was presumed to haveerected them with that understanding. Hee Kee Chun v. United States, 194F.2d 176 (9th Cir. 1952).

Where the express terms of lease contemplatedvarying methods by which the property could revert to the lessor, thosemethods were of equal force and effect unless the contrary appeared. HeeKee Chun v. United States, 194 F.2d 176 (9th Cir. 1952).

Payment to defaulting homesteader.- An appropriation of money by the legislature to pay to a defaulting homesteaderany sum in excess of the value of his improvements as legally ascertainedwould amount to a gift or gratuity and would be void. In re Koki, 25 Haw.406 (1920).

Refund of purchase price. - Theappropriation of a sum of money by the legislature for the avowed purposeof refunding a portion of the purchase price of public lands which hadbeen sold at a price fairly fixed by the executive department having authorityto fix it was clearly an attempt by the legislature to repudiate, overturnand set aside the lawful act of a coordinate branch of the government andto substitute its judgment for that of the department upon which the lawcast the duty of exercising its judgment. The act constituted an attemptto divert public funds to private use without any moral or equitable obligationor other consideration of public policy to support it. It was not thereforea rightful subject of legislation. In re Tavares, 26 Haw. 101 (1921).

Letters of guardianship issued to analien, who had an interest in or control of certain lands that allegedlycame within the prohibitions herein enumerated, did not have to be canceled;the guardian had the right to apply to the commissioner and the governorfor their written consent to his control of the land and he was permittedto avail himself of that privilege. In re Okamura, 26 Haw. 239 (1922).

Constructive trust. - A complainantfiled a bill in equity for the declaration and enforcement of a constructivetrust relating to a piece of land. The respondent had become entitled toa "preference right" to purchase the land from the governmentat an appraised valuation. While the respondent had no children of herown and while the complainant was her keiki hanai (foster child), the respondentwas not under any legal obligation to place the title in the complainant'sname, nor did it appear that the surrounding circumstances were such asto place her under any moral obligation so to do. Kamakaokauwila Hookaiav. Waiwaiole Kealoha, 30 Haw. 446 (1928).

Decree conclusive. - Because fullauthority with respect to the administration, management, and dispositionof Hawaii's public lands had been committed to Hawaii by Congress by theterms of this section and § 91 of the OrganicAct, a land court decree was conclusive upon the United States. Sotomurav. County of Haw., 402 F. Supp. 95 (D. Haw. 1975).

Cited in Carter v. Gear, 16 Haw.242 (1904); Pratt v. Holloway, 17 Haw. 539 (1906); In re Income Taxes,18 Haw. 15 (1906); McCandless v. Carter, 18 Haw. 221 (1907); Lucweiko v.Pratt, 18 Haw. 489 (1907); Honolulu Rapid Transit & Land Co. v. Wilder,29 S. Ct. 44 (1908); Honolulu Rapid Transit & Land Co. v. Territoryof Haw., 21 Haw. 136 (1912); In re Taxes Waiohinu Agric. & GrazingCo., 23 Haw. 621 (1917); Robinson v. Bailey, 28 Haw. 462 (1925); Correav. Waiakea Mill Co., 32 Haw. 310 (1932); Correa v. Waiakea Mill Co., 32Haw. 372 (1932); Waiakea Mill Co. v. Vierra, 35 Haw. 550 (1940); Bishopv. Mahiko, 35 Haw. 608 (1940); United States v. Fullard-Leo, 66 F. Supp.782 (D. Haw. 1944); United States v. Fullard-Leo, 331 U.S. 256, 67 S. Ct.1287, 91 L. Ed. 1474 (1947); Munoz v. Ashford, 40 Haw. 675 (1955); Territoryof Haw. v. Branco, 42 Haw. 304 (1958); State v. Kahua Ranch, Ltd., 47 Haw.28, 384 P.2d 581 (1963); Civil Aeronautics Bd. v. Island Airlines, 235F. Supp. 990 (D. Haw. 1964); Robinson v. Ariyoshi, 441 F. Supp. 559 (D.Haw. 1977); Hawaii ex rel. Att'y Gen. ex rel. Dep't of Hawaiian Home Landsv. United States, 676 F. Supp. 1024 (D. Haw. 1988).

OPINIONS OF ATTORNEY GENERAL

Land laws continued in effect.- The land laws of the state, being mainly this section and other actsof Congress relating to the public lands in existence at the time of statehood,have always been in effect since Hawaii became a state, except as modifiedor changed by the Admission Act or by the Constitution, and will continuein effect unless altered or repealed by the legislature. Op. Att'y Gen.No. 61-68 (1961).

Disposition by commissioner of publiclands. - Lands need not be withdrawn to be disposed of by the commissionerof public lands. Op. Att'y Gen. No. 59-96 (1959).

Proposed permit to an individual for theuse of the Waiahole Forest Reserve could not be issued by the board ofcommissioners of agriculture and forestry. Such a disposition of an interestin land could only be made by the commissioner of public lands or underhis direction. Op. Att'y Gen. No. 59-96 (1959).

Land set aside for public purposes.- Although the governor had the authority under subsection (q) to set asidepublic lands for public purposes, §§ 206 and 212 of the HawaiiHomes Commission Act did not authorize the governor to set aside Hawaiianhome lands temporarily returned by the Hawaiian homes commission; unleasedHawaiian home lands, prior to 1959, could be leased to the general publicfor revenue purposes only pursuant to subsection (q). Op. Att'y Gen. No.75-3 (1975). An executive order in 1955 purporting to set aside Hawaiihome lands for a park pursuant to subsection (q) did not have to be withdrawnunder § 171-11 because the executive order was invalid and of no effectunder Hawaii Homes Commission Act §§ 206 and 212. Op. Att'y Gen.No. 75-3 (1975).

Land used for military purposes.- Lands set aside by executive order to the use of the United States formilitary purposes previous to the passage of the Hawaiian Homes CommissionAct were not "public lands" and therefore were not "availablelands" granted by that act to the Hawaiian homes commission. Op. Att'yGen. No. 64-44 (1964).

Appraisals. - In selling landsto the territory, appraisers may not receive less than the fair value ofsuch lands as determined by their appraisals. In appraising such lands,the factors of a use which in effect would lessen the value of the landsof the territory should not be used, and therefore, in the sale of landsthe appraisers must appraise lands at their highest and best use in orderto determine the fair value to which the territory is entitled. Op. Att'yGen. No. 59-22 (1959).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, A Case for Reparations for Native Hawaiians, 16 Haw. B.J. 13 (1981).

Article, The Veterans' AdministrationHome Loan Guaranty Program in Hawaii, 19 Haw. B.J. 21 (1985).

University of Hawaii Law Review.
Comment, Ownership of Geothermal Resources in Hawaii, 1 U. Haw. L. Rev.69 (1979).

Comment, Hawaii's Ceded Lands, 3 U. Haw.L. Rev. 101 (1981).

Comment, State-Federal JurisdictionalConflict over the Internal Waters and Submerged Lands of the NorthwesternHawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

Note, Hawaii Surface Water Law: An Analysisof Robinson v. Ariyoshi, 8 U. Haw. L. Rev. 603 (1986).

§ 74. Commissioner of agriculture and forestry.

That the laws of Hawaii relating to agricultureand forestry, except as changed by this Act, shall continue in force, subjectto modification by Congress or the legislature. In said laws "commissionerof agriculture and forestry" shall be substituted, respectively, for"bureau," "bureau of agriculture and forestry," "commissioner,""commissioners of agriculture," and "commissioners of theisland of Oahu."

CASE NOTES

Cited in Carter v. Gear,16 Haw. 242 (1904).

§ 75. Superintendent of public works.

That there shall be a superintendent ofpublic works, who shall have the powers and duties of the superintendentof public works and those of the powers and duties of the minister of theinterior which relate to streets and highways, harbor improvements, wharves,landings, waterworks, railways, electric light and power, telephone lines,fences, pounds, brands, weights and measures, fires and fireproof buildings,explosives, eminent domain, public works, markets, buildings, parks andcemeteries, and other grounds and lands now under the control and managementof the minister of the interior, and those of the powers and duties ofthe minister of finance and collector-general which relate to pilots andharbor masters under the laws of Hawaii, except as changed by this Actand subject to modification by the legislature. In said laws the word "legislature"shall be substituted for "councils" and the words "circuitcourt" for "the Hawaiian Postal Savings Bank."

CASE NOTES

Cited in Dole v. Cooper, 15 Haw.297 (1903); Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904);Pratt v. Holloway, 17 Haw. 539 (1906); McCandless v. Carter, 18 Haw. 221(1907); Hilo Meat Co. v. Antone, 23 Haw. 675 (1917).

§ 76. Superintendent of public instruction.

That there shall be a superintendent ofpublic instruction, who shall have the powers and perform the duties conferredupon and required of the minister of public instruction by the laws ofHawaii as amended by this Act, and subject to modification by the legislature.

It shall be the duty of the United StatesCommissioner of Labor to collect, assort, arrange, and present in reportsin nineteen hundred and five, and every five years thereafter, statisticaldetails relating to all departments of labor in the Territory of Hawaii,especially in relation to the commercial, industrial, social, educational,and sanitary condition of the laboring classes, and to all such other subjectsas Congress may by law direct. The said Commissioner is especially chargedto ascertain the highest, lowest, and average number of employees engagedin the various industries in the Territory, to be classified as to nativity,sex, hours of labor, and conditions of employment, and to report the sameto Congress.

[Am April 8, 1904, c 948, 33 Stat 164]

Editor's Note. - The duties ofthe United States Commissioner of Labor, referred to in this section, arenow performed by the United States Commissioner of Labor Statistics.

CASE NOTES

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

§ 77. Comptroller and Deputy Comptroller.

There shall be a comptroller and deputycomptroller, who shall have the powers and duties conferred upon and requiredby the auditor-general and deputy auditor-general, respectively, by Actthirty-nine of the session laws as amended by this Act, subject to modificationby the legislature. In said Act "officer" shall be substitutedfor "minister" where used without other designation.

[Am Aug. 1, 1956, c 862, §1, 70 Stat 920]

CASE NOTES

Cited in In re Austin, 15 Haw.114 (1903); Carter v. Gear, 16 Haw. 242 (1904).

§ 77A. Post-Auditor.

There shall be a post-auditor who shallbe appointed by the Governor by and with the advice and consent of theSenate, who shall serve for a term of eight years and until a successorshall have been duly appointed. He shall have such powers and duties relatingto the post-audit of Territorial and county accounts and appropriationsas may be prescribed by law. The legislature, by a two-thirds vote of themembers in joint session, may remove the post-auditor at any time for cause.

[Add Aug. 1, 1956, c 862, § 2; repL Sp 1959 1st, c 14, § 2]

§ 78. Surveyor.

That there shall be a surveyor, who shallhave the powers and duties heretofore attached to the surveyor-general,except such as relate to the geodetic survey of the Hawaiian Islands.

CASE NOTES

Cited in Carter v. Gear, 16 Haw.242 (1904); Bishop v. Mahiko, 35 Haw. 608 (1940).

§ 79. High sheriff.

That there shall be a high sheriffand deputies, who shall have the powers and duties of the marshal and deputiesof the Republic of Hawaii under the laws of Hawaii, except as changed bythis Act, and subject to modification by the legislature.

CASE NOTES

Cited in Appeal of Cooper, 14 Haw.282 (1902); Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904);Carter v. Gear, 16 Haw. 242 (1904).

§ 80. Appointment, removal, tenure, andsalaries of officers.

The President shall nominate and, by andwith the advice and consent of the Senate, appoint the chief justice andjustices of the supreme court, who shall hold office for the term of sevenyears unless sooner removed by the President, and the judges of the circuitcourts who shall hold office for the term of six years, unless sooner removedby the President; and the governor shall nominate and, by and with theadvice and consent of the senate of the Territory of Hawaii, appoint theattorney-general, treasurer, commissioner of public lands, commissionerof agriculture and forestry, superintendent of public works, superintendentof public instruction, auditor, deputy auditor, surveyor, high sheriff,members of the board of health, commissioners of public instruction, boardof prison inspectors, board of registration and inspectors of election,and any other boards of a public character that may be created by law,except for the board of trustee of the employees' retirement system; andhe may make such appointments when the senate is not in session by grantingcommissions, which shall, unless such appointments are confirmed, expireat the end of the next session of the senate. He may, by and with the adviceand consent of the senate of the Territory of Hawaii, remove from officeany of such officers. All such officers shall hold office for four yearsand until their successors are appointed and qualified, unless sooner removed,except the commissioners of public instruction and the members of saidboards, whose term of office shall be as provided by the laws of the Territoryof Hawaii.

The manner of appointment of members ofthe board of trustees of the employees' retirement system shall be as providedfor by section 6-61, Revised Laws of Hawaii, 1955.

The manner of appointment and removaland the tenure of all other officers shall be as provided by law; and thegovernor may appoint or remove any officer whose appointment or removalis not otherwise provided for.

The salaries of all officers other thanthose appointed by the President shall be as provided by the legislature,but those of the chief justice and the justices of the supreme court andjudges of the circuit courts shall not be diminished during their termof office.

All officers appointed under the provisionsof this section shall be citizens of the Territory of Hawaii and shallhave resided therein for at least three years next preceding their appointment.

All persons holding office in the HawaiianIslands at the time this Act takes effect shall continue to hold theirrespective offices until their successors are appointed and qualified,but not beyond the end of the first session of the senate of the Territoryof Hawaii unless reappointed as herein provided.

Provided, however, That nothing in thissection shall be construed to conflict with the authority and powers conferredby section fifty-six of this Act as herein amended.

[Am March 3, 1905, c 1465, § 2, 33Stat 1035; July 9, 1921, c 42, § 312, 42 Stat 119; May 9, 1956, c237, § 1, 70 Stat 130; Aug. 28, 1958, Pub L 85-793, 72 Stat 957]

Cross References. - On appointmentof members of the Supreme Court, see also § 82of the Organic Act.

CASE NOTES

Appointment of circuit court judges.- Section 603-41, which provides for the temporary assignment of a circuitjudge to another circuit, is not in conflict with this section. Section603-41 does not purport to authorize the appointment of a judge of anycircuit in case of a vacancy. It proceeds upon the assumption that in duecourse the power of appointment referred to in this section will be exercisedby those who are vested with the power so to do. Fraga ex rel. Fraga v.Hoffschlaeger Co., 26 Haw. 557 (1922), aff 'd, 290 F. 146 (9th Cir. 1923)(decided under prior law).

Suspension. - The governor doesnot have authority to suspend an officer, who, by the terms of this section,must be appointed and may be removed by the governor by and with the adviceand consent of the Senate and who is to hold his office for four yearsunless sooner removed. In re Austin, 15 Haw. 114 (1903).

Cited in Robertson v. Pratt, 13Haw. 590 (1901); Hind v. Wilder's S.S. Co., 14 Haw. 215 (1902); Appealof Cooper, 14 Haw. 282 (1902); Ninomiya v. Kepoikai, 15 Haw. 273 (1903);Dole v. Cooper, 15 Haw. 297 (1903); Territory of Haw. v. Supervisors ofOahu, 15 Haw. 365 (1904); Carter v. Gear, 16 Haw. 242 (1904).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, The Administration of Justice in Hawaii Today, 5 Haw. B.J. 18(1967).

ARTICLE 4. The Judiciary.

§ 81.

That the judicial power of the Territoryshall be vested in one supreme court, circuit courts, and in such inferiorcourts as the legislature may from time to time establish. And until thelegislature shall otherwise provide, the laws of Hawaii heretofore in forceconcerning the several courts and their jurisdiction and procedure shallcontinue in force except as herein otherwise provided.

Historical note. - By the Act ofApril 19, 1930, the Hawaii National Park was removed from territorial jurisdiction,except for certain purposes therein stated.

Cross References. - See §83 of the Organic Act as to grand and petty juries.

CASE NOTES

Courts are bound to consider wholeact. - This section is but one of many sections, all of which are entitledto equal respect, and it is evident that to obtain a comprehensive viewof the intention of Congress the courts are bound to consider the wholeact so far as it relates to the disposition of judicial power. Carter v.Gear, 197 U.S. 348, 25 S. Ct. 491, 49 L. Ed. 787 (1905).

Power to act at chambers. - Theequity and probate jurisdiction of circuit judges at chambers existingunder the Hawaiian Constitution, which vested the judicial power in onesupreme court and such inferior courts as the legislature might establish,was not impliedly repealed by this section. Carter v. Gear, 16 Haw. 242(1904), aff 'd, 197 U.S. 348, 25 S. Ct. 491, 49 L. Ed. 787 (1905).

The power to act at chambers was savedby this section, continuing in force the previous laws of Hawaii concerningthe courts and their procedure. Carter v. Gear, 197 U.S. 348, 25 S. Ct.491, 49 L. Ed. 787 (1905).

Naturalization. - The circuit courtsof the Territory had power to naturalize. Territory of Haw. v. Kaizo, 17Haw. 295, aff'd sub nom. Kaizo v. Henry, 211 U.S. 146, 29 S. Ct. 41, 53L. Ed. 125 (1908).

Insanity proceedings. - The provisionsof former Act 149 of 1909, attempting to create a board of commissionersto hear and determine insanity proceedings, were not contrary to the OrganicAct. In re Atcherley, 19 Haw. 535 (1909).

Auditing board. - The theory thatthe legislature could not create an inferior court of final jurisdictionwould have no application to a special commission in the nature of an auditingboard, created to adjudicate claims against the government. Liverpool &London & Globe Ins. Co. v. Macfarlane, 14 Haw. 481 (1902).

Fornication. - Former §3151, R.L., relating to fornication, was not inconsistent with any of theprovisions of the Organic Act or the United States Constitution. Territoryof Haw. v. Martin, 19 Haw. 201 (1908).

Offenses on naval reservation.- The district court has jurisdiction of an assault and battery committedby a commander of the United States Navy on the naval reservation in Honolulu.Territory v. Carter, 19 Haw. 198 (1908).

Sentencing. - Former indeterminatesentence statute was not unconstitutional under this section in impingingupon the judicial power and discretion vested in the trial court. Territoryv. Armstrong, 22 Haw. 526 (1915).

Appeals. - Not until by Act ofCongress of March 3, 1905, were appeals allowed from the supreme courtof Hawaii to the supreme court of the United States on other than federalquestions. In re Estate of Allen, 35 Haw. 501 (1940).

Cited in Hind v. Wilder's S.S.Co., 14 Haw. 215 (1902); Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S.Ct. 225, 46 L. Ed. 321 (1902); Brown v. Goto, 16 Haw. 263 (1904); Territoryv. Boyd, 16 Haw. 660 (1905); Territory v. Johnson, 16 Haw. 743 (1905);Ex parte Higashi, 17 Haw. 428 (1906); Territory of Haw. v. Jacintho Miguel,18 Haw. 402 (1907); In re EWA Plantation Co., 18 Haw. 530 (1908); Territoryv. Van Dalden, 33 Haw. 113 (1934); International Longshoremen's & Warehousemen'sUnion v. Wirtz, 37 Haw. 404 (1946).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, The Administration of Justice in Hawaii Today, 5 Haw. B.J. 18(1967).

§ 82. Supreme Court.

That the supreme court shall consist ofa chief justice and two associate justices, who shall be citizens of theTerritory of Hawaii and shall be appointed by the President of the UnitedStates, by and with the advice and consent of the Senate of the UnitedStates, and may be removed by the President: Provided, That any vacancyor vacancies occurring within the court, whether by reason of disqualification,disability, death, resignation, removal, absence from the Territory orinability to attend, or for any other reason, shall, for the hearing anddetermination of any cause, be temporarily filled as provided by the lawof said Territory, and, if there be no such law, then by appointment fromamong the circuit judges of the Territory by the remaining justices orjustice, and if there be no such justice, then by the governor.

[Am June 15, 1950, c 250, 64 Stat 216]

Cross References. - On appointmentsto the supreme court, see § 80 of the OrganicAct. On amount of salaries, see § 92. As to nonreductionof salaries during term of office, see § 80.As to appeal and error, see § 86.

CASE NOTES

Vacancies. - Under this sectionand RLH 1945, § 9610 (see now § 602-10), parties to pending causescould not be compelled to go to trial before the two remaining justicesduring a vacancy, however created. Moreover, those sections did not empowerthe two remaining justices to authorize a circuit judge to sit with themto hear and determine causes during a vacancy in the office of a thirdformer justice. Menashe v. Sutton, 38 Haw. 449 (1950).

Cited in Carter v. Gear, 16 Haw.242 (1904).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, The Administration of Justice in Hawaii Today, 5 Haw. B.J. 18(1967).

§ 83. Laws continued in force.

That the laws of Hawaii relative to thejudicial department, including civil and criminal procedure, except asamended by this Act, are continued in force, subject to modification byCongress, or the legislature. The provisions of said laws or any laws ofthe Republic of Hawaii which require juries to be composed of aliens orforeigners only, or to be constituted by impaneling natives of Hawaii only,in civil and criminal cases specified in said laws, are repealed, and alljuries shall hereafter be constituted without reference to the race orplace of nativity of the jurors; but no person who is not a citizen ofthe United States and twenty-one years of age and who cannot understandinglyspeak, read, and write the English language shall be a qualified juroror grand juror in the Territory of Hawaii. No person shall be convictedin any criminal case except by unanimous verdict of the jury. No plaintiffor defendant in any suit or proceeding in a court of the Territory of Hawaiishall be entitled to a trial by a jury impaneled exclusively from personsof any race. Until otherwise provided by the legislature of the Territory,grand juries may be drawn in the manner provided by the Hawaiian statutesfor drawing petty juries, and shall sit at such times as the circuit judgesof the respective circuits shall direct; the number of grand jurors ineach circuit shall be not less than thirteen, and the method of the presentationof cases to said grand jurors shall be prescribed by the supreme courtof the Territory of Hawaii. The several circuit courts may subpoena witnessesto appear before the grand jury in like manner as they subpoena witnessesto appear before their respective courts.

[Am April 1, 1952, c 127, 66 Stat 32]

Historical note. - As to juriesbetween annexation and establishment of territorial government, see noteto Joint Resolution of Annexation, RLH 1955, page 13.

CASE NOTES

Acquittal. - A statute in forcein the Hawaiian Islands at the time of their annexation to the United Statesand continued in force in the territorial courts, providing that the successivedisagreement of two juries in a criminal case shall operate as an acquittal,did not govern the United States District Court for the Territory. UnitedStates v. Bower, 4 U.S.D.C. Haw. 466 (1914).

Subpoenas. - The provision of thissection that "the several circuit courts may subpoena witnesses toappear before the grand jury in like manner as they subpoena witnessesto appear before their respective courts" refers merely to the ordinaryprocess of subpoena and the ordinary means of compelling obedience to suchprocess and of punishing disobedience. In re Craig ex rel. Ortiz, 20 Haw.447 (1911).

Waiver of jury trial. - Section806-61, as amended by Act 36, L. 1931, providing the procedure to accomplishjury waiver in criminal cases, did not violate this section or Art. III,§ 2, cl. 3, or the Sixth Amendment of the Constitution of the UnitedStates. Territory v. Van Dalden, 33 Haw. 113 (1934).

Unanimous verdict. - This sectiondoes not require that no person shall be tried for any criminal offenseexcept by a jury, but that in all criminal trials by a jury an unanimousverdict shall be necessary for conviction. Ex parte Higashi, 17 Haw. 428(1906).

Cited in Fugihara Oriemon v. Territoryof Haw., 13 Haw. 413 (1901); Coffield v. Territory of Haw., 13 Haw. 478(1901); Ex parte Ah Oi, 13 Haw. 534 (1901); Ex parte Wilder's S.S. Co.,183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); Territory v. Ferris,15 Haw. 139 (1903); Hawaii v. Mankichi, 190 U.S. 197, 23 S. Ct. 787, 47L. Ed. 1016 (1903); Territory of Haw. v. Ng Kow, 15 Haw. 602 (1904); Carterv. Gear, 16 Haw. 242 (1904); In re Anin, 17 Haw. 341 (1906); In re EWAPlantation Co., 18 Haw. 530 (1908); Territory of Haw. ex rel. Pratt v.Kapiolani Estate, Ltd., 18 Haw. 640 (1908); Territory of Haw. v. Soga,20 Haw. 71 (1910); Territory of Haw. v. Holt, 20 Haw. 240 (1910); In reGrand Jury, 20 Haw. 255 (1910); Wynne v. United States, 217 U.S. 234, 30S. Ct. 447, 54 L. Ed. 748 (1910); Soga v. Jarrett, 3 U.S.D.C. Haw. 502(1910); Territory of Haw. v. Chisi Nishimura, 22 Haw. 614 (1915); Territoryof Haw. v. Kiyoto Taketa, 27 Haw. 844 (1924); United States v. Fujimoto,105 F. Supp. 727 (D. Haw. 1952); State v. Jones, 45 Haw. 247, 365 P.2d460 (1961).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, The Administration of Justice in Hawaii Today, 5 Haw. B.J. 18(1967).

§ 84. Disqualification by relationship,pecuniary interest, or previous judgment.

That no person shall sit as a judge orjuror in any case in which his relative by affinity or by consanguinitywithin the third degree is interested, either as a plaintiff or defendant,or in the issue of which the said judge or juror has, either directly orthrough such relative, any pecuniary interest; nor shall any person sitas a judge in any case in which he has been of counsel or on an appealfrom any decision or judgment rendered by him, and the legislature of theTerritory may add other causes of disqualification to those herein enumerated.

[Am May 27, 1910, c 258, § 6, 36Stat 447; rep L Sp 1959 1st, c 5, § 8]

Cross References. - As to othercauses of disqualification added by legislature, see HRS § 601-7.

CASE NOTES

Intent of Congress. - The intentof Congress, as expressed in this section, was that a judge should notsit in a case where, with reference to that case, the relation of attorneyand client had existed between him and one of the parties, whether he waspersonally familiar with the case or had advised in regard to it or not.Magoon v. Lord-Young Eng'g Co., 22 Haw. 245 (1914).

Application. - The provision inthis section that "No judge shall sit on an appeal, or new trial,in any case in which he may have given a previous judgment" appliesto only (1) an appeal or (2) a new trial in (3) the same case in whichthe judge has given a previous judgment. Ex parte Osaki Mankichi, 13 Haw.570 (1901).

Affidavit of bias and prejudice notsufficient to disqualify circuit judge from trying with a jury a criminalcase if the alleged ground of such disqualification is not one set forthin this section or in any statute of the Territory passed in conformitytherewith. Territory v. Eckart, 31 Haw. 920 (1931).

It is not contrary to former Art. 88of the Constitution for a judge to preside over a jury on the second trialof a case, where on the first trial, the same judge presiding, therewas a disagreement of the jury and the judge had given no judgment. Boydv. Gandall, 11 Haw. 322 (1898).

No bias shown where judge had punishedattorney for contempt on three previous occasions. - That a judge onthree different occasions some years ago had punished an attorney for contemptof court did not of itself show bias or prejudice on the part of such judgeagainst the attorney. In re Davis, 15 Haw. 377 (1904).

Pecuniary interest essential to disqualificationabsent relationship between judge and party. - When no relationshipexists between the judge and any of the parties, a pecuniary interest inthe issue of the suit is essential to disqualification, but when the specifiedrelationship does exist, the mere fact that the judge's relative is a partyconstitutes a disqualification. The words "either as a plaintiff ordefendant" would seem to have been inserted to define the nature ofthe relative's interest which should be sufficient to disqualify. Smithv. Lindsay, 20 Haw. 262 (1910).

Appearance in court of one member offirm is appearance of firm. - When a litigant retains a firm of lawyersin a case, each member of the firm becomes the attorney or counsel forthe litigant, and the appearance in court of one member of the firm isthe appearance of the firm. Magoon v. Lord-Young Eng'g Co., 22 Haw. 245(1914).

Previous judgment. - This sectiondoes not prevent a circuit judge who had ordered a nonsuit, which was setaside by the supreme court, from entertaining a motion for a change ofvenue based on the ground that an impartial jury cannot be obtained inthe circuit in which the action is pending. Spreckels v. De Bolt, 16 Haw.476 (1905).

Judge may excuse himself. - Inaddition to this section relating to disqualification for reasons of relationship,pecuniary interest or previous judgment, an appellate judge may sua sponteexcuse himself from participating in a case where he feels that there arecompelling moral reasons or where there exists in his own mind some realdoubts as to the impartiality which he as an individual may exert on thematter before him as a judicial officer. In re Sawyer, 41 Haw. 270 (1956).

Judge disqualified. - A judge isdisqualified if through a relative he has a pecuniary interest in the issueof the case, but the fact that a relative has a pecuniary interest doesnot disqualify the judge under the terms of this section unless, owingto the nature of the relation, in some way he has a pecuniary interestthrough the relative, as, for instance, in the case of husband and wife,father and child, or of an obligation, whether moral or legal, to supportthe relative, or of a derived or common interest due to any cause. In allsuch instances and in any case, the existence of a pecuniary interest disqualifies.EWA Plantation Co. v. Holt, 18 Haw. 509 (1907).

When a judge, prior to his accession tothe bench, has been counsel in a justiciable matter which subsequentlyassumes the form of active litigation, he is disqualified to sit in itshearing and determination. Henry Waterhouse Trust Co. v. Treadway, 29 Haw.256 (1926).

A justice of this court is not disqualifiedfrom sitting in a case which requires consideration of an act of whichhe expressed approval to a member of the judiciary committee of the legislaturewhen the bill was before it. Ex parte Higashi, 17 Haw. 428 (1906).

A justice of the supreme court is disqualifiedto sit in review upon a question of law reserved to the court by a circuitjudge, which question requires the court to determine the validity or invalidityof an order previously made by said justice when a circuit judge. In reEstate of Beckley, 31 Haw. 150 (1929).

Having given an opinion to the trusteesof an estate that they had authority to sell a tract of land, and havingobtained the approval of the court for such sale, an attorney would beprevented in that matter from sitting as judge in a case in which the actionof the trustees in making such sale was under attack. In re Estate of Campbell,42 Haw. 474 (1958).

When the terms of the employment of anattorney by a client are such as to authorize and require the attorney,until revocation or modification of that employment, to institute all legalproceedings necessary to attain the end desired by the client and to defendall legal proceedings instituted by an opponent seeking to frustrate theaccomplishment of that desired end, any and all legal proceedings brought,whether in furtherance of or by way of frustrating the desired end, arewithin the meaning of the reference in this section to the case in whichthe attorney was originally of counsel. Bertelmann v. Lucas, 27 Haw. 637(1923), aff 'd, 28 Haw. 1 (1924), , 31 F.2d 641 (9th Cir. 1929).

Under the terms of a former partnershipagreement, all law business coming to either member of a firm, one of whomwas the chief justice, was to be deemed to be the business of the firm,and all employments of either member as attorney were to be deemed to beemployments of the firm. Where a client hired one of the attorneys, thechief justice was disqualified. The fact that he took no part in the caseand had no knowledge of its issues did not alter his status. In re HawaiiTel. Co., 26 Haw. 405 (1922).

A judge who, in a proceeding institutedin the land court of the Territory for the registration of title to land,acted as attorney for one of the parties summoned as an adjoining owner,was disqualified to sit as a member of the supreme court upon a reviewof the same proceeding by writ of error, even though his client filed inthe land court a disclaimer of all interest in the land. In re AmericanSugar Co., 29 Haw. 438 (1926).

In a case where a corporation is a partyas trustee but a judgment may be entered attaching individual liabilityto it, a judge owning stock in the corporation is disqualified to sit.Thomson v. McGonagle, 33 Haw. 565 (1935).

Judge not disqualified. - A justiceof the supreme court is not disqualified from sitting on an appeal in ahabeas corpus case brought to obtain the release of a prisoner under asentence of imprisonment previously pronounced by such justice when hewas a circuit judge. The provision in this section that no judge shallsit on an appeal, or new trial, in any case in which he may have givena previous judgment does not apply to such a case. Ex parte Osaki Mankichi,13 Haw. 570 (1901).

A justice of the supreme court is notdisqualified to sit in a case by reason of having been counsel of recordas a member of a partnership which had been retained in the case, he havingtaken no active part in the case nor advised upon the questions in issue,and there being no statutory provision disqualifying him by reason of havingbeen of counsel. Love v. Love, 17 Haw. 194 (1905).

A justice of the supreme court is notdisqualified from sitting in a case with which he has had no previous connection,merely because a question of law is involved which was involved also incertain other and distinct cases at the trial of which he had presidedwhen a circuit judge. The provision in this section that no judge shallsit on an appeal, or new trial, in any case, in which he may have givena previous judgment, does not apply to such a case. Ex parte Ah Oi, 13Haw. 534 (1901).

A justice is not disqualified from sittingin a cause in which a corporation is a party by the fact of a relativeby affinity or consanguinity within the third degree holding shares ofstock in the corporation, the justice having no pecuniary interest in theissue of the case, either directly or through such relative. EWA PlantationCo. v. Holt, 18 Haw. 509 (1907).

A circuit judge is not disqualified tohear or determine a partition suit by reason of a pecuniary interest thereinbecause of his having made an order directing the payment of an attorney'sfee for services rendered for the judge in a prohibition proceeding growingout of the partition suit, out of a fund in court belonging to the partiesto the suit, such order having no connection with the subject matter orissues of that suit. Scott v. Stuart, 22 Haw. 641 (1915).

Chief justice of the supreme court ofthe Territory was not disqualified to sit in disbarment proceedings whereit did not appear that any relative of his, either by affinity or consanguinitywithin the third degree, was interested in the cause, either as plaintiffor defendant, or that he had any pecuniary interest in the issue thereof,either directly or through any such relative. In re Davis, 2 U.S.D.C. Haw.54 (1904).

Judge was not disqualified from hearingan action of ejectment because he was of counsel in an earlier proceedingfor summary possession of the same land involved in the ejectment action.Territory of Haw. ex rel. Campbell v. Kapiolani Estate, Ltd., 20 Haw. 548(1911), appeal dismissed, 231 U.S. 766, 34 S. Ct. 327, 58 L. Ed. 472 (1913).

Circuit judge was not barred from directinga guardian to file an inventory and account because he had acted as oneof the attorneys for the petitioner in presenting her petition and securingher appointment as guardian. In re Hitchcock, 20 Haw. 553 (1911).

The rendering of a previous judgment heldnot to disqualify a judge, because such judgment was rendered in anothercase and upon a question not involved in the case in which the objectionof disqualification was presented. In re Davis, 15 Haw. 377 (1904).

Where a majority of the justices of thesupreme court, acting under a power of appointment contained in a will,the justices receiving no reward or pecuniary benefit, fill a vacancy amongthe trustees under such will, they are not thereby disqualified from sittingin a case on appeal involving the validity of the appointment. In re Estateof Bishop, 23 Haw. 575 (1917), aff 'd, 250 F. 145 (9th Cir. 1918).

The circuit judge, being the father ofthe assessor in chief, was not disqualified to sit in a case. Republicof Hawaii v. West, 10 Haw. 5 (1895).

Removal of district magistrate.- Where a district magistrate as an attorney at law, with full knowledgeof the facts, accepts and continues in an employment, the purpose of whichis to consummate an illegal marriage and avoid criminal prosecution ina matter that might well come before him as district magistrate, his removalfrom office is deemed necessary for the public good. In re Soares, 27 Haw.509 (1923) (decision under prior law).

Where testimony of judge given in casebecomes subject matter of review on appeal, he should not sit in appellatecourt. In re Estate of Banning, 9 Haw. 354 (1894).

A justice of the supreme court, who hasheard a case in the intermediary court, cannot hear the case again in thesupreme court on appeal without a jury, and the objection cannot be waivedby the parties. Hing Yee v. Chung Wa, 6 Haw. 304 (1881).

Word "appeal" is used inthe general sense. A writ of error is an appeal within the meaningof the statute. So, also, an order of reference is none the less a decisionmerely because it was interlocutory. Bruner v. C. Brewer & Co., 20Haw. 617 (1911).

Congress, in use of the term "plaintiffor defendant," must have intended a party to the record, one whobrings or is bound to appear and answer or defend a cause in court. Lucasv. Lucas, 20 Haw. 433 (1911).

Motion to dismiss, overruled on appeal,did not constitute new trial or retrial. - The sustaining of a demurrer(now a motion to dismiss) on the ground of the defendant's nonliability,which was overruled on appeal, was not equivalent to giving a judgmentin the case, so that a trial of the case on the facts was not a new trialwithin the provisions of the Organic Act. Kumazo Matsumura v. County ofHaw., 19 Haw. 197 (1908).

Mandamus does not lie to make judgereverse his decision of no disqualification. - Where a judge has determinedthat under the Organic Act he is not disqualified from hearing a cause,mandamus does not lie to make him reverse that decision and to assign thecause. Territory ex rel. Scott v. Stuart, 22 Haw. 576 (1915).

Cited in Hitchcock v. Humphreys,14 Haw. 1 (1902); Notley v. Brown, 17 Haw. 393 (1906); William W. Bierce,Ltd. v. Hutchins, 18 Haw. 374 (1907); Wynne v. United States, 217 U.S.234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); United States v. Thurston, 4U.S.D.C. Haw. 1 (1911); Anderson v. W.G. Rawley Co., 27 Haw. 60 (1923);Carey v. Discount Corp., 35 Haw. 786 (1941); Carey v. Discount Corp., 35Haw. 811 (1941); Whittemore v. Farrington, 234 F.2d 221 (9th Cir. 1956);State ex rel. Kobayashi v. Midkiff, 49 Haw. 252, 413 P.2d 249 (1966).

ARTICLE 5. United States Officers.

§ 85. Delegate to Congress.

That a Delegate to the House of Representativesof the United States, to serve during each Congress, shall be elected bythe voters qualified to vote for members of the house of representativesof the legislature.

Such Delegate shall possess the qualificationsnecessary for membership of the senate of the legislature of Hawaii. Suchelection shall be held on the first Tuesday after the first Monday in Novemberof every even year and at such places as shall be designated by the secretaryof the Territory. The ballot for Delegate shall be such as the legislatureof Hawaii may designate, and until provision is made by the territoriallegislature the ballot shall be of pink paper and shall be of the samegeneral form as those used for the election of representatives to the legislature.

The method of certifying the names ofcandidates for place on this ballot and all the conduct of the electionof a Delegate shall be in conformity to the general election laws of theTerritory of Hawaii.

The person having the greatest numberof votes shall be declared by the governor duly elected, and a certificateshall be given accordingly.

Every such Delegate shall have a seatin the House of Representatives with the right of debate, but not of voting.In case of a vacancy occurring in the office of Delegate, the governorof the Territory is directed to call a special election to fill such vacancy:Provided, however, That no vacancy shall be filled which occurs withinfive months of the expiration of a Congressional term.

The legislature of the Territory of Hawaiishall have the right to alter or amend any part of the election laws ofsaid Territory, including those providing for an election of Delegate toCongress, and its action shall be the law, with full binding force, untilaltered, amended, or repealed by Congress.

[Am June 28, 1906, c 3582, 34 Stat 550]

CASE NOTES

Election laws. - This section,authorizing the legislature to alter or amend the election laws of theTerritory, did not authorize the legislature to provide by statute forthe election of members of the legislature at a time other than that fixedby § 14 for the holding of general elections.Cooke v. Thayer, 22 Haw. 247 (1914).

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

§ 86. Federal court.

Removal of causes and appeal. The lawsof the United States relating to removal of causes, appeals and other mattersand proceedings as between the courts of the United States and the courtsof the several States shall govern in such matters and proceedings as betweenthe courts of the United States and the courts of the Territory of Hawaii.

[Am March 3, 1909, c 269, § 1, 35Stat 838; March 3, 1911, c 231, § 291, 36 Stat 1167; March 4, 1921,c 161, § 1, 41 Stat 1412; July 9, 1921, c 42, § 313, 42 Stat119; June 1, 1922, c 204, Title II, 42 Stat 599, 614, 616; Jan. 3, 1923,c 21, Title II, 42 Stat 1068, 1084; Feb. 12, 1925, c 220, 43 Stat 890;Feb. 13, 1925, c 229, § 13, 43 Stat 936; Dec. 13, 1926, c 6, §1, 44 Stat 919; Jan. 31, 1928, c 14, § 1, 45 Stat 54; July 31, 1946,c 704, § 1, 60 Stat 716; June 25, 1948, c 646, §§ 8, 39,62 Stat 986, 992; rep March 18, 1959, Pub L 86-3, § 14(f), 73 Stat4]

Historical note. - This sectionwas amended in toto by the Act of June 25, 1948, 62 Stat. 986, c. 646,§ 8.

As to jurisdiction within Hawaii NationalPark, see the Act of April 19, 1930, c. 200, 46 Stat. 227, as amended.

As to direct review by the U.S. supremecourt from the supreme court of the Territory, see 28 U.S.C. §§1252, 1257.

For procedure on appeal and removal generallysee U.S. Code, Title 28.

CASE NOTES

This section placed courts of the Territoryon the same footing as courts of the several States so far as appealsto and writs of error from the federal courts were concerned. Hind v. Wilder'sS.S. Co., 13 Haw. 174 (1900), appeal denied, 108 F. 113 (9th Cir. 1901),appeal dismissed, 183 U.S. 54, 22 S. Ct. 225, 46 L. Ed. 321 (1902).

The Organic Act placed the courts of theTerritory in a relatively similar position to the federal judicial systemas were the state courts. Alesna v. Rice, 172 F.2d 176 (9th Cir.), cert.denied, 338 U.S. 814, 70 S. Ct. 53, 94 L. Ed. 492 (1949).

As to applicability of federal Edmunds-TuckerAct, relating to adultery and fornication, to the Territory of Hawaii,see United States v. Ishibashyi, 3 U.S.D.C. Haw. 517 (1910).

Federal court powers of reviewof decisions of the territorial supreme court in criminal cases were limitedto those involving the Constitution, laws or treaties of the United States.Park v. Territory of Haw., 208 F.2d 357 (9th Cir. 1953).

As to powers conferred on court underthis section, see United States ex rel. Lewers & Cooke, Ltd. v.Burrell Constr. Co., 3 U.S.D.C. Haw. 316 (1908).

Federal question required for review.- Where the record did not show that any federal question was raised orsuggested before the assignment of error, a judgment of the supreme courtof Hawaii cannot be reviewed by U.S. supreme court. Honolulu Rapid Transit& Land Co. v. Wilder, 211 U.S. 144, 29 S. Ct. 46, 53 L. Ed. 124 (1908).

Appeals from supreme court of Hawaii.- Not until the Act of Congress of March 3, 1905, were appeals allowedfrom the supreme court of Hawaii to the supreme court of the United Stateson other than federal questions. In re Estate of Allen, 35 Haw. 501 (1940).

Jurisdiction. - The language fromthe Organic Act, as amended, apparently makes applicable to the Territorythe provisions of Section 76, 28 U.S.C.A. as applied to state courts. Thiswould require that the jurisdiction of the district court be sustained.Yeung v. Territory of Haw., 132 F.2d 374 (9th Cir. 1942).

Prerequisite to appellate jurisdiction,the federal question involved in the case must be substantial. Warner v.Territory of Haw., 206 F.2d 851 (9th Cir. 1953).

United States district court for theterritory is court of federal jurisdiction only, made so by Section86 of the Act of Congress of April 30, entitled an Act to provide a governmentfor the Territory of Hawaii. John D. Spreckels & Bros. Co. v. Steamship"Nevadan" & Am. Hawaiian S.S. Co., 1 U.S.D.C. Haw. 354 (1903).

Waiver of right of objection to U.S.district court's jurisdiction. - In a cause removed to the U.S. DistrictCourt for the District of Hawaii, the defendant waived any right of objectionto the district court's jurisdiction of the person by entering into stipulationextending time to answer. Cornn v. Wardell, 4 U.S.D.C. Haw. 605 (1915).

A nonresident defendant who secured removalto the U.S. District Court for the District of Hawaii of a suit broughtagainst him in a Hawaiian territorial court, could not then have the suitdismissed for federal court's want of jurisdiction of nonresidents, underthe federal Judicial Code, section 51. Cornn v. Wardell, 4 U.S.D.C. Haw.605 (1915).

United States District Court for Districtof Hawaii could not be deprived of jurisdiction as court of admiralty byany act of the territorial legislature, particularly by statute, purportingto abolish common-law remedies in personal injury cases. Hong v. AmericanS.S. "Claudine", 4 U.S.D.C. Haw. 717 (1916).

Joinder of person materially interestedin subject of suit. - The general rule, as to parties, is that whena bill is brought for relief, all persons materially interested in thesubject of the suit ought to be made parties, either as plaintiffs or defendants,in order to prevent a multiplicity of suits, and that there may be a completeand final decree between all parties interested. But this is a rule establishedfor the convenient administration of justice, and is subject to many exceptions,and is, more or less, a matter of discretion in the court, and ought tobe restricted to parties, whose interest is involved in the issue, andis to be affected by the decree. Isenberg v. Trent Trust Co., 31 F.2d 553(9th Cir. 1929), cert. denied, 279 U.S. 862, 49 S. Ct. 479, 73 L. Ed. 1001(1929).

Federal courts will pay deference toterritorial court's decisions. - The rule that a federal court willpay deference to decisions of territorial courts on matters of local concernis applicable to decisions of the supreme court of the Territory. WaialuaAgric. Co. v. Christian, 305 U.S. 91, 59 S. Ct. 21, 83 L. Ed. 60, reh'gdenied, 305 U.S. 673, 59 S. Ct. 240, 83 L. Ed. 2d 436 (1938).

It is well settled that local tribunalswill not be overruled upon matters of purely local concern, excepting incases of manifest error. Fernandez v. Andrade, 59 F.2d 681 (9th Cir. 1932).

It has been settled that the federal courts,in considering questions which have been passed upon by the state courtsand which by reason of the decisions of the latter have become establishedin local practice, will be governed by the state decisions, and this regardlessof whether the construction of a state statute is involved. O'Neil v. Dreier,61 F.2d 598 (9th Cir. 1932).

Unless manifestly erroneous. -There was no claim, nor any basis for claiming, that the supreme court'sconstruction of deed violated the Constitution or any law of the UnitedStates. That construction was based, not on federal law, but on local law.Therefore, unless manifestly erroneous, it must be accepted as correct.Walker v. O'Brien, 115 F.2d 956 (9th Cir. 1940), cert. denied, 312 U.S.707, 61 S. Ct. 829, 85 L. Ed. 1139 (1941).

Federal power to override decisions ofthe Supreme Court of Hawaii on questions of local law is not to be exercisedin doubtful cases, but in cases of manifest error only. Hawaii Consol.Ry. v. Borthwick, 105 F.2d 286 (9th Cir. 1939).

Laws of United States relating to removalof causes and other matters and proceedings as between the federalcourts and the courts of the several states shall govern in such mattersand proceedings as between the federal courts and the courts of the Territory.Yeung v. Territory of Haw., 132 F.2d 374 (9th Cir. 1942).

Special finding of facts required forreview. - Where there was no special finding of facts, the court'sreview was limited to rulings on the pleadings and to those rulings inthe progress of the trial which were excepted to at the time and were dulypresented by the bill of exceptions, as required by statute. United Statesv. Shingle, 91 F.2d 85 (9th Cir.), cert. denied, 302 U.S. 746, 58 S. Ct.264, 82 L. Ed. 577 (1937).

Bankruptcy Act should be liberallyconstrued in favor of right of discharge. Bockus v. Yuen, 29 F.2d 205(9th Cir. 1928).

Holding in Hawaiian court bar to trialof charge of adultery in federal court. - An acquittal or convictionin a court of Hawaii on the charge of adultery, which was an offense inall the territories of the United States by the federal laws, and in Hawaiiby the continued enforcement of the law of the republic of Hawaii on thesubject by Congress and the Organic Act, was a bar to a trial of the samecharge in the federal court of Hawaii, inasmuch as both courts derivedtheir authority from the United States. United States v. Perez, 3 U.S.D.C.Haw. 295 (1908).

Action at law tried by court withoutwritten waiver of jury. - If an action at law is tried by the courtwithout the written waiver of a jury, the jurisdiction of the appellatecourt to review the judgment is limited to the process, pleadings, andjudgment. This latter proposition is too firmly established to requirecitation of authority. United States v. Yamoto, 50 F.2d 599 (9th Cir. 1931).

Appeals must be timely. - Sincethe petition for allowance of appeal was presented and the appeal perfected,not within the ten days provided by former Rule 126, but one day shortof 90 days after the decision and entry of the order thereon, the CircuitCourt of Appeals could not entertain the appeal. Bryan v. Fumio Arai, 64F.2d 954 (9th Cir. 1933).

Appeals from judgments against twoor more parties must be dismissed unless all parties are joined. -Appeals from judgments against two or more parties, joint in form, mustbe dismissed unless all parties against whom the judgment was entered joinin the appeal, or unless there is a summons and severance, and in determiningthe nature of the judgment the court will not look beyond the face of therecord. Hudson v. Pacific Trust Co., 93 F.2d 821 (9th Cir. 1937).

It is fundamental that appellant musteither have or represent an interest in the subject-matter of the appeal,and it is generally held that where it does not appear that the administratorhas an interest in a controversy and he is the only party asking a reviewof the judgment, the appeal should be dismissed. King v. Buttolph, 30 F.2d769 (9th Cir. 1929).

Rulings not incorporated in bill of exceptions not considered bycourt. - The case transcript incorporated many matters which were notincluded in the bill of exceptions and were not properly a part of therecord. That portion of the record purported to contain proceedings hadin court, the rulings of the court thereon, and an order allowing an exceptionthereto. But the formal allowance of exceptions in this fashion was notthe equivalent of a bill of exceptions. Consequently, those rulings, exceptinsofar as they were incorporated in the bill of exceptions, could notbe considered by the court. Lau Lee v. United States, 67 F.2d 156 (9thCir. 1933).

Cited in Hawaiian Tramways Co.v. Rapid Transit & Land Co., 1 U.S.D.C. Haw. 164 (1901); Ex parte Wilder'sS.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); EquitableLife Assurance Soc'y v. Brown, 187 U.S. 308, 23 S. Ct. 123, 47 L. Ed. 190(1902); Thayer v. Lidgate, 14 Haw. 544 (1902); Dyer v. The "Ivanhoe",2 U.S.D.C. Haw. 79 (1904); In re EWA Plantation Co., 19 Haw. 72 (1908);United States v. Oswald, 141 F.2d 921 (9th Cir. 1944); Stainback v. MoHock Ke Lok Po, 336 U.S. 368, 69 S. Ct. 606, 93 L. Ed. 741 (1949).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, The Administration of Justice in Hawaii Today, 5 Haw. B.J.18 (1967).

§ 87. Internal-revenue district.

That the Territory of Hawaii shall constitutea district for the collection of internal revenue of the United States,with a collector, whose office shall be at Honolulu, and deputy collectorsat such other places in the several islands as the secretary of the Treasuryshall direct.

§ 88. Customs district.

That the Territory of Hawaii shall comprisea customs district of the United States, with ports of entry and deliveryat Honolulu, Hilo, Mahukona and Kahului.

Cross References. - See also §§93 and 98 of the Organic Act.In addition, see Chronological Note of Acts Affecting Hawaii for otherlegislation by Congress relating to customs and kindred subjects, and noteto Joint Resolution of annexation, as to customs duties between annexationand the establishment of Territorial government in RLH 1955.

ARTICLE 6. Miscellaneous.

§ 89. Wharves and Landings.

The wharves and landings constructed orcontrolled by the Republic of Hawaii on any seacoast, bay, roadstead, orharbor shall remain under the control of the government of the Territoryof Hawaii, which shall receive and enjoy all revenue derived therefrom.

[Am June 29, 1954, c 418, 68 Stat 323]

Historical note. - The Act of December22, 1942, c. 803, 56 Stat. 1071, authorizes federal departments and agenciesto pay the Territory "the reasonable value, as determined by the departmentor agency concerned," of the use of such property, notwithstandingthis section, during the period from Jan. 1, 1942, until six months afterthe end of the war, unless sooner terminated by Congress.

CASE NOTES

Cited in Wynne v. United States,217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Civil Aeronautics Bd.v. Island Airlines, 235 F. Supp. 990 (D. Haw. 1964).

§ 90.

That Hawaiian postage stamps, postal cards,and stamped envelopes at the post-offices of the Hawaiian Islands whenthis Act takes effect, shall not be sold, but, together with those thatshall thereafter be received at such offices as herein provided, shallbe canceled under the direction of the Postmaster-General of the UnitedStates; those previously sold and uncanceled shall, if presented at suchoffices within six months after this Act takes effect, be received at theirface value in exchange for postage stamps, postal cards, and stamped envelopesof the United States of the same aggregate face value and, so far as maybe, of such denominations as desired.

Historical note. - As to Hawaiiancurrency, see the Act of Jan. 14, 1903, c. 186, 32 Stat. 771, 48 U.S.C.§§ 513-517.

§ 91.

That, except as otherwise provided, thepublic property ceded and transferred to the United States by the Republicof Hawaii under the joint resolution of annexation, approved July seventh,eighteen hundred and ninety-eight, shall be and remain in the possession,use, and control of the government of the Territory of Hawaii, and shallbe maintained, managed, and cared for by it, at its own expense, untilotherwise provided for by Congress, or taken for the uses and purposesof the United States by direction of the President or of the Governor ofHawaii. And any such public property so taken for the uses and purposesof the United States may be restored to its previous status by directionof the President; and the title to any such public property in the possessionand use of the Territory for the purposes of water, sewer, electric, andother public works, penal, charitable, scientific, and educational institutions,cemeteries, hospitals, parks, highways, wharves, landings, harbor improvements,public buildings, or other public purposes, or required for any such purposes,may be transferred to the Territory by direction of the President, andthe title to any property so transferred to the Territory may thereafterbe transferred to any city, county, or other political subdivision thereof,or the University of Hawaii by direction of the governor when thereuntoauthorized by the legislature; Provided, That when any such public propertyso taken for the uses and purposes of the United States, if instead ofbeing used for public purpose, is thereafter by the United States leased,rented, or granted upon revocable permits to private parties, the rentalsor consideration shall be covered into the treasury of the Territory ofHawaii for the use and benefit of the purposes named in this section.

[Am May 27, 1910, c 258, § 7, 36Stat 447; June 19, 1930, c 546, 46 Stat 789; Aug. 21, 1958, Pub L 85-719,72 Stat 709]

Historical note. - See 48 U.S.C.§ 1489 for the Act of Mar. 27, 1934, c. 99, 48 Stat. 507, providingagainst loss of title of U.S. land.

See the Joint Resolution of Annexationand the note thereto, in regard to ceded public lands, at RLH 1955, page13. See Chronological Note of Acts Affecting Hawaii for Acts of Congress,presidential proclamations, and executive orders, at RLH 1955, page 9.For transfers made by the governor, see notes to this section in R.L. 1925and R.L. 1935 and the records of the commissioner of public lands.

Under the original section, the Territorycould not sell ceded movable property, but previous sales were ratifiedand further sales authorized by an Act of May 26, 1906, 34 Stat. 204.

Cross References. - See §73(q) of the Organic Act as to further power of the governor to setland aside for use of United States. As to definition of "public lands,"see § 171-2.

CASE NOTES

Purpose. - It was the purpose ofCongress, as expressed in the Organic Act, to leave the ceded public landsin the control of the Territory to be administered by it for the benefitof its people. There is in this benign program no proper place for advantagingthe United States at the expense of the inhabitants on grounds which, thoughhaving the semblance of legality, affront the sense of justice. UnitedStates v. Fullard-Leo, 156 F.2d 756 (9th Cir. 1946), aff'd, 331 U.S. 256,67 S. Ct. 1287, 91 L. Ed. 1474 (1946).

Eminent domain. - Condemnationis not the appropriate procedure for the taking of lands for public useby the United States where the fee is vested in the United States and possession,use and control is in Hawaii, which has leased to a private party. UnitedStates v. Chun Chin, 150 F.2d 1016 (9th Cir. 1945).

Compensation. - The taking of publicland under authority of this section is not subject to the condition thatcompensation be paid, as in condemnation, for the unexpired portion ofa term lease. United States v. Marks, 187 F.2d 724 (9th Cir.), cert. denied,342 U.S. 823, 72 S. Ct. 42, 96 L. Ed. 622 (1951).

Land court decree conclusive upon UnitedStates. - Because full authority with respect to the administration,management, and disposition of Hawaii's public lands had been committedto Hawaii by Congress by the terms of this section and §73 of the Organic Act, a land court decree was conclusive upon theUnited States. Sotomura v. County of Haw., 402 F. Supp. 95 (D. Haw. 1975).

Withdrawal of leased lands for publicpurposes encompasses uses of United States as well as state. UnitedStates v. Marks, 187 F.2d 724 (9th Cir.), cert. denied, 342 U.S. 823, 72S. Ct. 42, 96 L. Ed. 622 (1951).

All of Kahoolawe Island, except forlighthouse portion, was under federal government control, as providedby a series of documents, including the Annexation Joint Resolution of1898, the 1900 Organic Act, the 1959 Admission Act, and the Land ConveyanceAct of 1963. Further, the Annexation Joint Resolution and the Organic Actwere not invalid because they were made, as claimed by the defendants,who had been indicted for illegal trespass upon a military reservation,by illegal revolutionaries. United States v. Mowat, 582 F.2d 1194 (9thCir.), cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 436 (1978).

Jurisdiction of offense committed onnaval reservation. - The district court has jurisdiction of an assaultand battery committed by a commander of the United States Navy on the navalreservation in Honolulu. Territory v. Carter, 19 Haw. 198 (1908).

Maintenance of naval reservation wouldsupport conviction of illegal trespass. - Even if the Navy did notpossess a fee simple absolute title to the Island of Kahoolawe, the maintenanceof a naval reservation there sufficed to support convictions under 18 U.S.C.§ 1382 for illegal trespass. United States v. Mowat, 582 F.2d 1194(9th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 436 (1978).

Cited in Territory of Haw. v. Supervisorsof Oahu, 15 Haw. 365 (1904); Territory of Haw. ex rel. Andrews v. Puahi,18 Haw. 649 (1908); Wynne v. United States, 217 U.S. 234, 30 S. Ct. 447,54 L. Ed. 748 (1910); United States v. Fullard-Leo, 66 F. Supp. 782 (D.Haw. 1944); Civil Aeronautics Bd. v. Island Airlines, 235 F. Supp. 990(D. Haw. 1964); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977);Trustees of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d446 (1987); Hawaii ex rel. Att'y Gen. ex rel. Dep't of Hawaiian Home Landsv. United States, 676 F. Supp. 1024 (D. Haw. 1988).

LEGAL PERIODICALS

University of Hawaii Law Review.
Comment, Hawaii's Ceded Lands, 3 U. Haw. L. Rev. 101 (1981).

Comment, State-Federal JurisdictionalConflict over the Internal Waters and Submerged Lands of the NorthwesternHawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

§ 92. Salaries, certain officers.

That the following officers shall receivethe following annual salaries, to be paid by the United States: The governor,$15,000; the secretary of the Territory, $5,400; the chief justice of theSupreme Court of the Territory, $10,500; the associate judges of the SupremeCourt, $10,000 each; the judges of the Circuit Court for the First Circuitof the Territory of Hawaii the sum of $7,500 and, to each of the judgesof the Second, Third, Fourth and Fifth Circuits of the Territory of Hawaiithe sum of $7,000. The governor shall receive annually from the UnitedStates, in addition to his salary, (1) the sum of $1,000 for stationery,postage, and incidentals, and (2) his traveling expenses while absent fromthe capital on official business. The governor is authorized to employa private secretary who shall receive an annual salary of $3,000 to bepaid by the United States.

[Am May 27, 1910, c 258, § 8, 36Stat 448; July 9, 1921, c 42, § 314, 42 Stat 120; May 29, 1928, c904, §§ 1, 2, 45 Stat 997; Oct. 15, 1949, c 695, § 5(a),63 Stat 880; rep March 18, 1959, Pub L 86-3, § 14(e), 73 Stat 4]

Cross References. - See §80 of the Organic Act as to nondiminishment of salaries of justicesof the supreme court and circuit courts during their term of office.

§ 93. Imports from Hawaii into the UnitedStates.

That imports from any of the HawaiianIslands, into any State or any other Territory of the United States, ofany dutiable articles not the growth, production, or manufacture of saidislands, and imported into them from any foreign country after July seventh,eighteen hundred and ninety-eight, and before this Act takes effect, shallpay the same duties that are imposed on the same articles when importedinto the United States from any foreign country.

§ 94. Investigation of fisheries.

That the Commissioner of Fish and Fisheriesof the United States is empowered and required to examine into the entiresubject of fisheries and the laws relating to the fishing rights in theTerritory of Hawaii, and report to the President touching the same, andto recommend such changes in said laws as he shall see fit.

CASE NOTES

Cited in Territory of Haw. v. MokeMakaiwi, 21 Haw. 631 (1913).

§ 95. Repeal of laws conferring exclusivefishing rights.

That all laws of the Republic of Hawaiiwhich confer exclusive fishing rights upon any person or persons are herebyrepealed, and all fisheries in the sea waters of the Territory of Hawaiinot included in any fish pond or artificial inclosure shall be free toall citizens of the United States, subject, however, to vested rights;but no such vested rights shall be valid after three years from the takingeffect of this Act unless established as hereinafter provided.

CASE NOTES

Constitutionality. - This section,which repeals all laws which confer exclusive fishing rights upon any personor persons, is not unconstitutional insofar as it affects those personswho became tenants after April 30, 1900. Damon v. Tsutsui, 31 Haw. 678(1930).

The provisions of §96 of the Organic Act requiring claimants to vested fishing rights,preliminary to the institution by the Territory of condemnation proceedings,to establish their rights in the manner therein provided, upon penalty,under the provisions of this section, of such rights becoming invalid incase of default, are reasonable and conform with due process. Bishop v.Mahiko, 35 Haw. 608 (1940).

Legislative intent. - The intentof the Congress in enacting this section and § 96of the Organic Act was to destroy, so far as it was in its power to doso, all private rights of fisheries and to throw open the fisheries tothe people. It would be contrary to that intent to hold that an owner ofvested fishing rights was not required to register his own rights, butcould rely upon and be protected by the registration effected by anotherperson claiming adversely to him. State v. Hawaiian Dredging Co., 48 Haw.152, 397 P.2d 593 (1964).

The language of this section is entirelyunambiguous. There can be no doubt that its intent was to repeal alllaws of Hawaii which conferred exclusive fishing rights, and that vestedrights were not to be excepted or protected unless established judiciallyby proceedings instituted within two years from the date of the OrganicAct. State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964).

Fisheries as free to noncitizen residents.- The Organic Act declared certain sea fisheries, which had previouslybeen free to citizens and residents alike, to be free to citizens of theUnited States. Without further enactment or authoritative notice to thecontrary, such fisheries remain free to noncitizen residents as well asto citizens. Matsuno v. The Am. Schooner Concord, 3 U.S.D.C. Haw. 227 (1907).

The police power of the territory withreference to the public fisheries was not restricted by this sectionso as to prevent the enactment of general laws respecting the means ormethods by which fish may be taken and forbidding the use of certain kindsof nets. Territory of Haw. v. Moke Makaiwi, 21 Haw. 631 (1913), appealdismissed, 238 U.S. 646, 35 S. Ct. 793, 59 L. Ed. 1503 (1914).

Continuation of vested rights.- Such private rights of exclusive fishery in the sea as were vested rightsat the time of passage of the Organic Act were not affected by the passageof that act, and continue as rights of property, notwithstanding the repealingwords of this section. Such rights will remain rights of property untilthey may be destroyed by condemnation and the payment of value. In re Fukunaga,16 Haw. 306 (1904).

Fishing rights of persons becomingtenants after passage of Act not vested. - Within the meaning of thissection, fishing rights were not vested rights in the case of persons whodid not become tenants of any land until after April 30, 1900, the dateof the passage of the Organic Act. Damon v. Tsutsui, 31 Haw. 678 (1930).

Statute held within savings clause.- Act of Hawaii of 1846, together with royal grants previously made, createdand confirmed rights in favor of landlords in adjacent fishing groundswithin the saving clause in the Organic Act of the territory repealingall laws of the Republic of Hawaii conferring exclusive fishing rights.Damon v. Hawaii, 194 U.S. 154, 24 S. Ct. 617, 48 L. Ed. 916 (1904).

Under the Act of 1846, the owner of anahapuoa is entitled to the adjacent fishing ground within the reef; thestatute created vested rights therein within the saving clause of the OrganicAct repealing all laws of the Republic of Hawaii conferring exclusive fishingrights. Carter v. Hawaii, 200 U.S. 255, 26 S. Ct. 248, 50 L. Ed. 470 (1906).

Fishery held not included under thissection. - Fishery within the Hanapepe river on the Island of Kanai,where the tide to a certain extent rises and falls, the water being a mixtureof sea water brought into the river by the action of the tide and freshwater coming down the river, was not included under this section and §96 of the Organic Act, even though the fish taken were sea fish comingfrom the ocean. Kapiolani Estate, Ltd. v. Territory of Haw., 18 Haw. 460(1907).

Former provision repealed by section.- Former penal provision, insofar as it provided a penalty for willfullydepriving a Konohiki of his fishing rights by appropriating the tabooedfish of said Konohiki, or otherwise, was repealed by this section. In reFukunaga, 16 Haw. 306 (1904).

Former provision not repealed by section.- Former provision requiring a license fee of $5.00 for a fishing boatwith a beam of 30 inches or more was not void under this section. Territoryof Haw. v. Matsubara, 19 Haw. 641 (1909).

A statute having for its object theprotection of amaama, a valuable food fish, and providing to that enda reasonable closed season, is a legitimate exercise of the police power,and within the grant of legislative power contained in §55 of the Organic Act, and does not conflict in any way with the declarationcontained in this section. Territory v. Hoy Chong, 21 Haw. 39 (1912).

Konohiki fishing rights are notonly subjects of lease, but are in character legal rights of ancient origin,having survived the operation of this section as established vested rightsunder proceedings provided by § 96 of the OrganicAct and recognized as such by § 187A-23. Coney v. Lihue PlantationCo., 39 Haw. 129 (1951).

Private nature of fish ponds. -The Organic Act of 1900, following annexation, repealed all prior lawsconferring private rights in seawater fisheries (subject to vested rights),but specifically exempted fish ponds from its scope; a similar provisionappears in the Hawaii Constitution. Opinions since annexation and statehoodconfirm the private nature of fish ponds in Hawaii. United States v. KaiserAetna, 408 F. Supp. 42 (D. Haw. 1976), aff'd, 444 U.S. 164, 100 S. Ct.383, 62 L. Ed. 2d 300 (1978), rev'd on other grounds, 584 F.2d 378 (9thCir. 1979).

Imposition of public navigation servitudeon privately constructed waterway. - Private "fast" landsand waters, such as fish ponds, when made navigable by improvements, orwhich could be made navigable, are subject to congressional regulation.Nevertheless, while Congress may provide for the improvement and regulationof navigation, and take necessary action to prevent interference or obstructionto navigation, it cannot impose a public navigation servitude upon sucha privately constructed waterway without paying a reasonable compensationfor the use thereof. United States v. Kaiser Aetna, 408 F. Supp. 42 (D.Haw. 1976), aff'd, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 300 (1978),rev'd on other grounds, 584 F.2d 378 (9th Cir. 1979).

Cited in Territory of Haw. ex rel.Sylva v. Bishop Trust Co., 41 Haw. 358 (1956).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, Public Access to Beaches in Hawaii: "A Social Necessity,"10 Haw. B.J. 3 (1963).

University of Hawaii Law Review.
Note, Kaiser Aetna v. United States: Private Property Rights in a NavigableMarina, 2 U. Haw. L. Rev. 589 (1981).

§ 96. Proceedings for opening fisheriesto citizens.

That any person who claims a private right to any such fishery shall,within two years after the taking effect of this Act, file his petitionin a circuit court of the Territory of Hawaii, setting forth his claimto such fishing right, service of which petition shall be made upon theattorney-general, who shall conduct the case for the Territory, and suchcase shall be conducted as an ordinary action at law. That if such fishingright be established the attorney-general of the Territory of Hawaii mayproceed, in such manner as may be provided by law for the condemnationof property for public use, to condemn such private right of fishing tothe use of the citizens of the United States upon making just compensation,which compensation, when lawfully ascertained, shall be paid out of anymoney in the treasury of the Territory of Hawaii not otherwise appropriated.

Cross References. - As to konohikirights, see § 187A-23.

CASE NOTES

Constitutionality. - The provisionsof this section requiring claimants to vested fishing rights, preliminaryto the institution by the Territory of condemnation proceedings, to establishtheir rights in the manner therein provided, upon penalty, under the provisionsof § 95 of the Organic Act, of such rights becominginvalid in case of default, are reasonable and constitute due process.Bishop v. Mahiko, 35 Haw. 608 (1940).

The requirement to take the initiativein establishing private vested fishing rights by the claimants is not violativeof the Fifth Amendment to the Constitution of the United States. Statev. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964).

Legislative intent. - Congressintended to do away with all fisheries in the sea waters of the Territorybelonging to private individuals and not included in any fish pond or artificialinclosure and to provide for the condemnation of such of them as were vestedrights. Kapiolani Estate, Ltd. v. Territory of Haw., 18 Haw. 460 (1907).

The intent of the Congress in enactingthis section and § 95 of the Organic Act wasto destroy, so far as it was in its power to do so, all private rightsof fisheries, and to throw open the fisheries to the people. It would becontrary to that intent to hold that an owner of vested fishing rightswas not required to register his own rights, but could rely upon and beprotected by the registration effected by another person claiming adverselyto him. State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964).

"Any such fishery," as used in this section, meansa fishery or fishing right referred to in § 95of the Organic Act. Kapiolani Estate, Ltd. v. Territory of Haw., 18 Haw.460 (1907).

The provisions of this section constitutean enabling act, empowering the Territory of Hawaii, in its capacityas agent of the United States, to exercise, in conjunction with local lawpertaining thereto, the power of eminent domain possessed by it, and pursuantthereto to acquire by condemnation all private fishing rights within theTerritory, for the declared purpose of making all fisheries in the seawaters of the Territory free to the citizens of the United States. Bishopv. Mahiko, 35 Haw. 608 (1940).

This section constitutes an enabling act,empowering the Territory to acquire all private fishing rights by condemnation;establishment of private fishing rights is the first of two parts of thesingle statutory proceeding contemplated by § 95of the Organic Act and this section. The action which the claimant of afishing right was required to file was designed to settle, as between claimantsand the government, the ownership and identity of private sea fisheries.State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964).

The procedure prescribed by this sectionmust be considered as a whole. The provisions of the section requiringestablishment of private fishing rights and those authorizing their acquisitionby condemnation are not independent or unrelated, but parts of a singlestatutory proceeding in eminent domain, the initial step of which was theestablishment of private fisheries before an appropriate tribunal, followedby condemnation, making just compensation when lawfully ascertained. Bishopv. Mahiko, 35 Haw. 608 (1940).

Jurisdiction of circuit court.- This section, which required any person who had a private right to anyfishery within two years after the effective date of the Organic Act tofile his petition in the circuit court of the Territory to establish suchright, did not give such circuit court any jurisdiction to modify the rightsof the owners of the fishery, as defined by the statutes of the Territoryof Hawaii; it could only recognize and confirm the title to fisheries.The extent of the rights of the owners were fixed by statute. Territoryof Haw. ex rel. Att'y Gen. v. Bishop Trust Co., 41 Haw. 597 (1957).

This section conferred jurisdiction onthe circuit court to hear the initial step in each proceeding, that is,the establishment of ownership of the fishing rights and of the boundariesof the fishery; no general jurisdiction was conferred upon the circuitcourt thereby. Furthermore, actions under this section to establish fishingrights were not actions to quiet title. Consequently, the circuit courtwas restricted to the exercise of that special statutory jurisdiction,which did not include power to adjudicate title to the submerged land inquestion. State v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d 593 (1964).

Konohiki fishing rights are notonly subjects of lease, but are in character legal rights of ancient origin,having survived the operation of § 95 of theOrganic Act as established vested rights under proceedings provided bythis section and recognized as such by § 187A-23. Coney v. Lihue PlantationCo., 39 Haw. 129 (1951).

Cited in Carter v. Territory, 14Haw. 465 (1902); Territory of Haw. v. Matsubara, 19 Haw. 641 (1909); Territoryof Haw. v. Moke Makaiwi, 21 Haw. 631 (1913); Territory of Haw. ex rel.Sylva v. Bishop Trust Co., 41 Haw. 358 (1956); Civil Aeronautics Bd. v.Island Airlines, 235 F. Supp. 990 (D. Haw. 1964).

LEGAL PERIODICALS

Hawaii Bar Journal.
Article, Public Access to Beaches in Hawaii: "A Social Necessity,"10 Haw. B.J. 3 (1963). University of HawaiiLaw Review.
Note, Kaiser Aetna v. United States: Private Property Rights in a NavigableMarina, 2 U. Haw. L. Rev. 589 (1981).

§ 97. Quarantine.

The health laws of the governmentof Hawaii relating to the harbor of Honolulu and other harbors and inletsfrom the sea and to the internal control of the health of the islands shallremain in the jurisdiction of the government of the Territory of Hawaii,subject to the quarantine laws and regulations of the United States.

[Am July 1, 1944, c 373, § 611, 58Stat 714]

CASE NOTES

Cited in In re Loucks, 13 Haw.17 (1900); Civil Aeronautics Bd. v. Island Airlines, 235 F. Supp. 990 (D.Haw. 1964).

§ 98.

That all vessels carrying Hawaiian registerson the twelfth day of August, eighteen hundred and ninety-eight, and whichwere owned bona fide by citizens of the United States, or the citizensof Hawaii, together with the following-named vessels claiming Hawaiianregister, Star of France, Euterpe, Star of Russia, Falls of Clyde, andWillscott, shall be entitled to be registered as American vessels, withthe benefits and privileges appertaining thereto, and the coasting tradebetween the islands aforesaid and any other portion of the United States,shall be regulated in accordance with the provisions of law applicableto such trade between any two great coasting districts.

Cross References. - See also §88 of the Organic Act. As to authority to register Hawaiian vesselsafter annexation and before the Organic Act, see note to Joint Resolutionof Annexation, RLH 1955, page 13. For special act for register of barkentine"Hawaii," see 32 Stat. 35.

CASE NOTES

Cited in Civil Aeronautics Bd.v. Island Airlines, 235 F. Supp. 990 (D. Haw. 1964).

§ 99.

That the portion of the public domainheretofore known as Crown land is hereby declared to have been, on thetwelfth day of August, eighteen hundred and ninety-eight, and prior thereto,the property of the Hawaiian government, and to be free and clear fromany trust of or concerning the same, and from all claim of any nature whatsoever,upon the rents, issues, and profits thereof. It shall be subject to alienationand other uses as may be provided by law.

Cross References. - See §73 of the Organic Act and the notes thereunder.

CASE NOTES

Cited in Territory of Haw. ex rel.Pratt v. Kapiolani Estate, Ltd., 18 Haw. 640 (1908); Territory of Haw.ex rel. Andrews v. Puahi, 18 Haw. 649 (1908); Robinson v. Ariyoshi, 441F. Supp. 559 (D. Haw. 1977).

§ 100.

All records relating to naturalization,all declarations of intention to become citizens of the United States,and all certificates of naturalization filed, recorded, or issued priorto the taking effect of the naturalization Act of June twenty-ninth, nineteenhundred and six, in or from any circuit court of the Territory of Hawaii,shall for all purposes be deemed to be and to have been made, filed, recorded,or issued by a court with jurisdiction to naturalize aliens, but shallnot be by this Act further validated or legalized.

[Am May 27, 1910, c 258, § 9, 36Stat 443; Oct. 14, 1940, c 876, § 504, 54 Stat 1137, 1172]

Historical note. - Certificatesof naturalization granted by the United States District Court for Hawaiibetween January 1, 1919, and July 1, 1922, were validated "insofaras failure of the record to contain final order under the hand of the courtis concerned" by the Act of June 29, 1938, c. 822, 52 Stat. 1249.

CASE NOTES

Reference to naturalization laws inthis section applies to the Nationality Act of 1940 and the Immigrationand Nationality Act of 1952. Wong Kam Wo v. Dulles, 236 F.2d 622 (9thCir. 1956).

The circuit courts of the Territory had power to naturalize.Territory of Haw. v. Kaizo, 17 Haw. 295, aff'd, 18 Haw. 28 (1906), aff'dsub nom. Kaizo v. Henry, 211 U.S. 146, 29 S. Ct. 41, 53 L. Ed. 125 (1908).

Cited in In re Loucks, 13 Haw.17 (1900); In re Rodiek, 3 U.S.D.C. 191 (1907).

§ 101.

That Chinese in the Hawaiian Islands whenthis Act takes effect may within one year thereafter obtain certificatesof residence as required by "An Act to prohibit the coming of Chinesepersons into the United States," approved May fifth, eighteen hundredand ninety-two, as amended by an Act approved November third, eighteenhundred and ninety-three, entitled "An Act to amend an Act entitled'An Act to prohibit the coming of Chinese persons into the United States,'approved May fifth, eighteen hundred and ninety-two," and until theexpiration of said year shall not be deemed to be unlawfully in the UnitedStates if found therein without such certificates: Provided, however, Thatno Chinese laborer, whether he shall hold such certificate or not, shallbe allowed to enter any State, Territory, or District of the United Statesfrom the Hawaiian Islands.

[Rep Dec. 17, 1943, c 344, 57 Stat 600]

Editor's Note. - For cases decidedunder this section, see United States v. Yong Ho, 1 U.S.D.C. Haw. 1 (1900);In re Ah Sing, 1 U.S.D.C. Haw. 15 (1900); In re Lin ex rel. Chong, 1 U.S.D.C.Haw. 44 (1900).

Cross References. - See §4 of the Organic Act. See also Joint Resolution of Annexation and notethereto, at RLH 1955, page 13.

§ 102.

That the laws of Hawaii relating to theestablishment and conduct of any postal savings bank or institution arehereby abolished. And the Secretary of the Treasury in the execution ofthe agreement of the United States as expressed in an Act entitled "Jointresolution to provide for annexing the Hawaiian Islands to the United States,"approved July seventh, eighteen hundred and ninety-eight, shall pay theamounts on deposit in the Hawaiian Postal Savings Bank to the persons entitledthereto, according to their respective rights, and he shall make all needfulorders, rules, and regulations for paying such persons and for notifyingsuch persons to present their demands for payment. So much money as isnecessary to pay said demands is hereby appropriated out of any money inthe Treasury not otherwise appropriated, to be available on and after thefirst day of July, nineteen hundred, when such payments shall begin, andnone of said demands shall bear interest after said date, and no depositshall be made in said bank after said date. Said demands of such personsshall be certified to by the chief executive of Hawaii as being genuineand due to the persons presenting the same, and his certificate shall besealed with the official seal of the Territory, and countersigned by itssecretary, and shall be approved by the Secretary of the Interior, whoshall draw his warrant for the amount due upon the Treasurer of the UnitedStates, and when the same are so paid no further liabilities shall existin respect of the same against the governments of the United States orof Hawaii.

Cross References. - See the Actof May 19, 1908, c. 175, 35 Stat. 165.

CASE NOTES

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

§ 103.

That any money of the Hawaiian PostalSavings Bank that shall remain unpaid to the persons entitled thereto onthe first day of July, nineteen hundred and one, and any assets of saidbank shall be turned over by the government of Hawaii to the Treasurerof the United States, and the Secretary of the Treasury shall cause anaccount to be stated, as of said date, between such government of Hawaiiand the United States in respect to said Hawaiian Postal Savings Bank.

Cross References. - See the Actof May 19, 1908, c. 175, 35 Stat. 165.

As to Hawaiian currency, see note to §90 of the Organic Act.

CASE NOTES

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

§ 104.

This Act shall take effect forty-fivedays from and after the date of the approval thereof, excepting only asto section fifty-two, relating to appropriations, which shall take effectupon such approval.

CASE NOTES

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

§ 105.

That no person shall be employed as amechanic or laborer upon any public work carried on in the Territory ofHawaii by the Government of the United States, whether the work is doneby contract or otherwise, unless such person is a citizen of the UnitedStates or eligible to become such a citizen.

[Add July 9, 1921, c 42, § 315, 42Stat 120]

Historical note. - The Act of January2, 1942, c. 646, 55 Stat. 881, authorized the employment of nationals ofthe United States for certain federal public work in Hawaii during thenational emergency declared by the President on May 27, 1941.

§ 106.

The board of harbor commissioners of theTerritory of Hawaii shall have and exercise all the powers and shall performall the duties which may lawfully be exercised by or under the Territoryof Hawaii relative to the control and management of the shores, shore waters,navigable streams, harbors, harbor and water-front improvements, ports,docks, wharves, quays, bulkheads, and landings belonging to or controlledby the Territory, and the shipping using the same, and shall have the authorityto use and permit and regulate the use of the wharves, piers, bulkheads,quays, and landings belonging to or controlled by the Territory for receivingor discharging passengers and for loading and landing merchandise, witha right to collect wharfage and demurrage thereon or therefor, and, subjectto all applicable provisions of law, to fix and regulate from time to timerates for services rendered in mooring vessels, charges for the use ofmoorings belonging to or controlled by the Territory, rates or chargesfor the services of pilots, wharfage, or demurrage, rents or charges forwarehouses or warehouse space, for office or office space, for storageof freight, goods, wares and merchandise, for storage space for the useof donkey engines, derricks, or other equipment belonging to the Territory,under the control of the board, and to make other charges, including tollor tonnage charges on freight passing over or across wharves, docks, quays,bulkheads, or landings. The Board shall likewise have power to appoint,subject to the Territorial laws of Hawaii relating to the civil serviceof Hawaii, clerks, wharfingers, and their assistants, pilots and pilot-boatcrews, and such other officers and employees as may be necessary; to makerules and regulations pursuant to this section and not inconsistent withlaw; and generally shall have all powers necessary to carry out the provisionsof this section. All officers and employees appointed pursuant to thissection shall be subject to the Territorial laws of Hawaii relating tothe civil service of Hawaii.

All moneys appropriated for harbor improvements,including new construction, reconstruction, repairs, salaries, and operatingexpenses, shall be expended under the supervision and control of the board,subject to the provisions of law. All contracts and agreements authorizedby law to be entered into by the board shall be executed on its behalfby its chairman.

The board shall prepare and submit annuallyto the governor a report of its official acts during the preceding year,together with its recommendations as to harbor improvements throughoutthe Territory.

[Add July 9, 1921, c 42, § 315, 42Stat 120; am Aug. 14, 1958, Pub L 85-650, § 1, 72 Stat 606]

Historical note. - This board wascreated by an act of the territorial legislature in 1911. See § 266-1.This act, as amended, was ratified by Congress by the Act of March 28,1916, 39 Stat. 39. As to the origin of this section, see S. Con. R. 11,Senate Journal, 1919, p. 1027, and H.R. 7632, introduced in Congress July21, 1919, Cong. Rec. v. 58, pt. 3, p. 2977, but not passed.

CASE NOTES

Harbor commissioners' power to imposetolls. - Under this section, the board of harbor commissioners of thisTerritory has the power to impose and collect tolls and tonnage chargesupon freight passing over territorial wharves. Munro, Ltd. v. Bigelow,31 Haw. 372 (1930).

Liability of company obtaining fillingmaterial from ocean. - In a wrongful death action, it was alleged thata dredging company had failed to maintain suitable and efficacious meansto prevent people from falling into a completed, excavated channel. Theexcavation was made in pursuance of a clause of a contract which authorizedthe company, under certain conditions, to obtain filling material fromthe ocean, but the right of the company to occupy a part of the ocean forthe purpose of obtaining filling material could only be exercised by thepermission of the board of harbor commissioners and federal engineers.Since when the purpose of such occupancy was accomplished the company notonly was under no duty to erect barriers or provide other means of preventingpeople from falling into the excavation, but it was entirely without authorityto do so, the complaint stated no cause of action against the company.Brown v. Bigelow, 30 Haw. 132 (1927).

Cited in Munro, Ltd. v. Bigelow,31 Haw. 372 (1930); Civil Aeronautics Bd. v. Island Airlines, 235 F. Supp.990 (D. Haw. 1964).

§ 107.

That this Act may be cited as the "HawaiianOrganic Act."

[Add July 9, 1921, c 42, § 315, 42Stat 121]

Historical note. - The act of July9, 1921, 42 Stat. c. 42, contains four titles. Title 2, comprising §§201-223, is the Hawaiian Homes Commission Act, 1920. Title 3, comprising§§ 301-315, consists of amendments of the Organic Act. Title1, comprising §§ 1-2, and Title 4, comprising §§ 401-402,are as follows:

"Section 1. That this Act may becited as the 'Hawaiian Homes Commission Act, 1920.'

"Section 2. That when used in thisAct the term 'Hawaiian Organic Act' means the Act entitled 'An Act to providea government for the Territory of Hawaii,' approved April 30, 1900, asamended.

"Section 401. All Acts or parts ofActs, either of the Congress of the United States or of the Territory ofHawaii, to the extent that they are inconsistent with the provisions ofthis Act, are hereby repealed.

"Section 402. If any provision ofthis Act, or the application of such provision to certain circumstances,is held unconstitutional, the remainder of the Act and the applicationof such provision to circumstances other than those as to which it is heldunconstitutional shall not be held invalidated thereby."

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