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 Laws, Act 200, effective July 1, 1994, and repealed effective December 31, 1997.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

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

"(2) Should the plebiscite be approved by a majority of qualified voters, provide for a fair and impartial process to resolve the issues relating to form, structure, and status of a Hawaiian nation.

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

"'Council' means the Hawaiian sovereignty elections council.

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

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

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

"'Special elections' means the Hawaiian convention referendum, the election of delegates, and the ratification election.

"SECTION 4. Hawaiian sovereignty elections council. (a) There is established within the department of accounting and general services for administrative purposes the Hawaiian sovereignty elections council, to carry out the purposes of this Act. The council shall consist of twenty members appointed by the governor without regard for section 78-4, Hawaii Revised Statutes. At least twelve of the twenty members shall be appointed from nominations submitted by Hawaiian organizations. Among the twelve, the governor shall appoint one member so designated from each of the following organizations: the Office of Hawaiian Affairs; Ka Lahui Hawai'i; the State Council of Hawaiian Homestead Association; and the Association of Hawaiian Civic Clubs. The council shall consist of at least one member from each of the islands of: Kauai; Niihau; Maui; Molokai; Lanai; Oahu; and Hawaii and one member representing nonresident Hawaiians. Appointments shall be made before August 1, 1993, and shall not be subject to confirmation by the senate. Any appointment not made by that date shall be filled by the council during its first meeting which shall be held before August 15, 1993. After August 31, 1994, no member of the council shall be eligible to run in any special election under this Act. The members shall elect a chairperson and vice-chairperson. Any vacancy on the council after July 1, 1994, shall be filled by the governor from a list of nominees submitted by the council. If the governor fails to make an appointment within thirty days of receiving the list, the council shall make an appointment from the list of nominees. Members shall serve without compensation but shall be reimbursed for expenses, including travel and subsistence expenses, necessary for the performance of their duties. Expenses shall be paid by the office of state planning.

"(b) The council shall:

"(1) Plan and conduct the plebiscite in 1995;

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

"(3) Provide for an apportionment plan;

"(4) Establish the eligibility of convention delegates;

"(5) conduct Hawaiian voter education and registration; and

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

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

"SECTION 4A. In carrying out the purposes of this Act, the council shall establish policies that do not discriminate on the basis of citizenship, place of residence, or civil status.

"SECTION 5. Task forces. (a) The governor shall convene an interagency task force, consisting of persons from such public agencies as may be necessary, to support the needs of the council. "(b) The council may establish a task force, otherwise known as a kupuna council, to provide advice and support as necessary. Members shall be appointed without regard for section 78-4, Hawaii Revised Statutes. Members of the kupuna council shall serve without compensation but shall be reimbursed for expenses, including travel and subsistence expenses, necessary for the performance of their duties. 1994 Haw. Sess. Laws, Act 200, § 11, further provides that the individuals who were duly appointed under 1993 Haw Sess. Laws, Act 359, and are serving as members of the Hawaiian sovereignty advisory commission on July 1, 1994, shall serve as members of the Hawaiian sovereignty elections council under this Act.

ARTICLE 1. General Provisions.

§ 1. Definitions.

That the phrase "the laws of Hawaii," as used in this Act without qualifying words, shall mean the constitution and 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 sovereignty of the Hawaiian Islands to the United States of America.

The constitution and statute laws of the Republic of Hawaii then in force, set forth in a compilation made by Sidney M. Ballou under the authority of the legislature, and published in two volumes entitled "Civil Laws" and "Penal Laws," respectively, and in the Session Laws of the Legislature for the session of eighteen hundred and ninety-eight, are referred to in this Act as "Civil Laws," "Penal Laws," and "Session Laws."

Historical note. - This is the Act, 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 President under the Joint Resolution of Annexation of July 7, 1898, 30 Stat. 750 (2 Supp. R.S. 895). The formal transfer of sovereignty under that resolution took place Aug. 12, 1898, and this Organic Act, creating the Territory, took effect June 14, 1900. See Joint Resolution RLH 1955, page 13, with notes thereto, for application of Federal Constitution and laws to Hawaii between 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 Chronological Note, RLH 1955, page 9.

The volumes mentioned in the second paragraph of this section did not contain all the laws then in force referred to in the first paragraph, nor were all the laws therein contained then in force. The Civil Laws and Penal Laws were compilations, not enacted by the legislature. These laws were in general continued in force by Congress with certain exceptions and modifications. See §§ 6, 7 of the Organic Act. See also, as to continuation of Hawaiian laws, notes to other sections of the Organic Act, and to Joint Resolution 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); Mookini v. United States, 303 U.S. 201, 58 S. Ct. 543, 82 L. Ed. 748 (1938); Inter-Island Steam 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 Submerged Lands of the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

§ 2. Territory of Hawaii.

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

Historical note. - The Hawaiian group 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 first nineteen were listed in the Commission report transmitted to Congress by the message of the President, Senate Doc. 16, 55th Congress, 3d Session, 1898. U.S. Misc. Pub. 1898.

It has been a question whether Midway was 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 Hawaiian Historical Society, paper read by P. C. Morris, Dec. 14, 1933. It was assumed by Congress that Midway was not part of the Territory in the Act of August 13, 1940, c. 662, 54 Stat. 784, extending jurisdiction of United States District Court for Hawaii to include Midway Islands, also Wake, Johnston, Sand, and Jarvis Islands.

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

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

CASE NOTES

For discussion of title to Palmyra Island, 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); United States 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, 46 L. Ed. 321 (1902); Bishop v. Mahiko, 35 Haw. 608 (1940); Civil Aeronautics Bd. v. Island Airlines, 235 F. Supp. 990 (D. Haw. 1964).

§ 3. Government of the Territory of Hawaii.

That a Territorial government is hereby established over the said Territory, with its capital at Honolulu, on the island of Oahu.

Historical note. - By this Act Hawaii acquired the status of an incorporated Territory and became an integral part of the United States.

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

CASE NOTES

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

§ 4. Citizenship.

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

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

Historical note. - This section was supplemented by the Act of July 2, 1932, 47 Stat. 571, amended by the Act of July 1, 1940, 54 Stat. 707, providing that for purposes of the Act of 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, 1922 was repealed by the Act of Oct. 14, 1940, 54 Stat. 1137, which in turn was repealed by the Act of June 27, 1952, 66 Stat. 166 (the McCarran-Walter Act), 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 born or naturalized in the Hawaiian islands and subject to the jurisdiction of 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 persons born in Hawaii certificates of Hawaiian birth, which are prima facie evidence.

See §§ 338-41 to 44. See also former 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 Organic Act. Also see the note to Joint Resolution of annexation, RLH 1955, page 13.

CASE NOTES

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

The framers of the Act of Congress providing a government for the Territory of Hawaii approved April 30, 1900, intended to refer to the geographical limits of the Hawaiian Islands rather than to any political conditions existing therein; and that the Hawaiian and American citizenship was to be extended to all persons born in the Islands, excepting only those born of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence by 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 were born in the Hawaiian Islands while the same was a monarchy known as the Kingdom 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 a domiciled Chinese laborer, in view of the provisions of Art. 17, § 1, of the Constitution of the Republic of Hawaii, and of the provisions of this section of the Act of Congress, approved April 30, 1900, to provide a government for the Territory of Hawaii, that all persons who were citizens of the Republic of Hawaii on August 12, 1898, were declared to be citizens of the United States and citizens of the Territory of Hawaii. United States v. Sai, 1 U.S.D.C. Haw. 118 (1901).

Naturalization. - 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 'd, 211 U.S. 146, 29 S. Ct. 41, 53 L. Ed. 125 (1908).

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

Deportation proceedings. - See United 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 as otherwise provided, all the laws of the United States, including laws carrying general appropriations, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States; Provided, That sections 1841 to 1891, inclusive, 1910 and 1912, 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 Territories of the United States, to limit Territorial indebtedness, and for other purposes," approved July 30, 1886, and the amendments thereto, shall not apply to Hawaii. Annotations

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

Historical note. - Federal liquor prohibition 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 federal Constitution and laws to Hawaii, see note to Joint Resolution of Annexation, RLH 1955, page 13.

CASE NOTES

Section made federal law applicable in Hawaii. - This section provides that the Constitution and all laws of the United States which are not locally inapplicable shall have the same 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 Territory all the laws of the United States which are not locally applicable, saving only certain specified statutes. The special exceptions strengthen the general application of this statutory rule. United States v. Thurston, 4 U.S.D.C. Haw. 1 (1911).

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

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

This section guarantees the fundamental rights of the Constitution to territorial citizens; it involves a national policy, the benefits of which the United States has accorded Hawaii. This section is a law giving rise to original jurisdiction of a United States district court, and pursuant to it, the court may adjudicate plaintiff's claims for the equal protection of the law arising from a statute of the United States. Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956), rev'd on other grounds, 256 F.2d 728 (9th Cir. 1958).

The equal protection of the law is guaranteed by the Organic Act of Hawaii. It is thus unnecessary to decide whether the Fourteenth Amendment applies directly to a territory; its protection to 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, and under which the territorial government is organized, must be taken as the fundamental law of the territory; and all territorial legislative assemblies derive their force and validity from such organic acts. Achi v. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

Cited in In re Loucks, 13 Haw. 17 (1900); In re Lin ex rel. Chong, 1 U.S.D.C. Haw. 44 (1900); Ex parte Ah 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); Robinson v. 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. United States, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); United States v. 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's Legal System: A Brief Survey, 1 Haw. B.J. (March 1963, at 1).

§ 6. Laws of Hawaii.

That the laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of this Act shall continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States.

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

Pursuant to § 73(c) of the Organic Act, certain land laws are not subject to repeal or amendment by 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 taken as the fundamental law of the territory; and all territorial legislative assemblies derive their force and validity from such Organic Acts. Achi v. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

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

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

Hawaiian laws not inconsistent with U.S. Constitution or Act remain in effect until changed. - This section, providing that the laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of the Organic Act should continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States, was significant of the complete recognition by the United States of the validity of such laws under the new status and of the agreement for their continuance until subject to further legislation relating to them either by Congress or by the Hawaiian legislature. United States v. Haleakala Ranch Co., 3 U.S.D.C. Haw. 299 (1908).

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

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

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

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

Right of appeal. - Although without statutory authority, the right of appeal to the circuit court for mitigation of sentence from district magistrates, and on exercise thereof the power of the circuit court to mitigate an excessive sentence of the district magistrate, were fixed by Hawaiian judicial precedent within the meaning of § 1-1, and therefore had the force of a statutory right and power under the laws of Hawaii within the meaning of this section. In re Marteles, 38 Haw. 479 (1950).

Cited in Coffield v. Territory of Haw., 13 Haw. 478 (1901); Tomikawa v. Gama, 14 Haw. 431 (1902); Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); The Schooner Robert Lewers Co. v. Kekauoha, 114 Fed. 849 (9th Cir. 1902); In re 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); Kealoha v. Castle, 112 U.S. 238, 5 S. Ct. 131, 28 L. Ed. 684 (1884); Wynne v. United States, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Territory of Haw. v. Ota, 36 Haw. 80 (1942); State v. Tin Yan, 44 Haw. 370, 355 P.2d 25 (1960); Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977).

LEGAL PERIODICALS

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

§ 7.

That the constitution of the Republic of 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 and thirty-four and one hundred and thirty-five, National museum; chapter twelve, Education of Hawaiian youths abroad; sections one hundred and fifty to one hundred and fifty-six, inclusive, Aid to board of education; chapter fourteen, Minister of the Interior; sections one hundred and sixty-six to one hundred and sixty-eight, inclusive, one hundred and seventy-four and one hundred and seventy-five, Government lands; section one hundred and ninety, Board of commissioners of public lands; section four hundred and 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-six and five hundred and fifty-seven, Railroad subsidy; chapter forty-seven, Pacific cable; chapter forty-eight, Hospitals; chapter fifty-one, Coins and currency; chapter fifty-four, Consolidation of public debt; chapter fifty-six, Post-office; chapter fifty-seven, Exemptions from postage; chapter fifty-eight, Postal savings banks; chapter sixty-five, Import duties; chapter sixty-six, Imports; chapter sixty-seven, Ports of entry and collection districts; chapter sixty-eight, Collectors; chapter sixty-nine, Registry of vessels; section one thousand and eleven, Customs-house charges; section eleven hundred and two, Elections; section eleven hundred and thirty-two, Appointment of magistrate; last clause of first subdivision and fifth subdivision of section eleven hundred and forty-four, first subdivision of section eleven hundred and forty-five, Jurisdiction; sections eleven hundred and seventy-three to eleven hundred and seventy-eight, inclusive, Translation of 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 thirteen hundred and fifty-four, inclusive, Juries; sections fifteen hundred and nine to fifteen hundred and fourteen, inclusive, Maritime matters; chapter one hundred and two, Naturalization; section sixteen hundred and seventy-eight, Habeas corpus; chapter one hundred and eight, Arrest of debtors; subdivisions six, seven, ten, twelve to fourteen of section seventeen hundred and thirty-six, Garnishment; sections seventeen hundred and fifty-five to seventeen hundred and fifty-eight, inclusive, Liens on vessels; chapter one hundred and sixteen, Bankruptcy, and sections eighteen hundred and twenty-eight to eighteen hundred 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 and thirteen, inclusive, Manufacture of liquors; chapter forty-three, Offenses on the high seas and other waters; sections five hundred and ninety-five and six hundred and two to six hundred and five, inclusive, Jurisdiction; section six hundred and twenty-three, Procedure; sections seven hundred and 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 hundred and nine, inclusive, Coasting trade; sections eight hundred and eleven and eight hundred and twelve, Peddling foreign goods; sections eight hundred and thirteen to eight hundred and fifteen, inclusive, Importation of livestock; section eight hundred and nineteen, Imports; sections eight hundred and eighty-six to nine hundred and six, inclusive, Quarantine; section eleven hundred and thirty-seven, Consuls and consular agents; chapter sixty-seven, Whale ships; sections eleven hundred and forty-five to eleven hundred and seventy-nine, inclusive, and twelve hundred and four to twelve hundred and nine, inclusive, Arrival, entry and departure of vessels; chapters sixty-nine to seventy-six, inclusive, Navigation and other matters within the exclusive jurisdiction of the United States; sections thirteen hundred and 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 sixteen hundred and twelve, Agriculture and forestry; chapter ninety-six, Seditious offenses; 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 public debt; 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 taken as the fundamental law of the territory; and all territorial legislative assemblies derive their force and validity from such Organic Acts. Achi v. Kapiolani Estate, Ltd., 1 U.S.D.C. Haw. 86 (1901).

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

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. United States, 217 U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Territory of Haw. 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, minister of foreign affairs, minister of the interior, minister of finance, minister of 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. Territory of Haw., 13 Haw. 413 (1901); In re Austin, 15 Haw. 114 (1903); Ninomiya v. Kepoikai, 15 Haw. 273 (1903).

§ 9. Amendment of official titles.

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

CASE NOTES

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

§ 10. Construction of existing statutes.

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

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

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

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

CASE NOTES

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

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

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

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

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

§ 11. Style of process.

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

[Rep L Sp 1959 1st, c 5, § 8]

CASE NOTES

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

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

ARTICLE 2. The Legislature.

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

§ 12. The legislative power.

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

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

CASE NOTES

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

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

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

§ 13.

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

CASE NOTES

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

§ 14. General elections.

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

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

CASE NOTES

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

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

§ 15. Each house judge of qualifications of members.

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

CASE NOTES

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

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

§ 16. Disqualification of legislators.

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

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

CASE NOTES

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

§ 17. Disqualifications of government officers and employees.

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

CASE NOTES

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

§ 18.

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

CASE NOTES

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

§ 19. Oath of office.

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

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

CASE NOTES

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

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

§ 20. Officers and rules.

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

§ 21. Ayes and noes.

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

§ 22. Quorum.

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

§ 23.

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

§ 24.

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

§ 25. Punishment of persons not members.

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

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

CASE NOTES

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

OPINIONS OF ATTORNEY GENERAL

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

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

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

§ 26. Compensation of members.

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

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

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

§ 27. Punishment of members.

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

§ 28. Exemption from liability.

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

§ 29. Exemption from arrest.

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

THE SENATE.

§ 30. Senate; Number; Term.

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

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

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

CASE NOTES

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

§ 31. Vacancies.

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

§ 32. Senatorial Districts.

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

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

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

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

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

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

Sixth senatorial district: The islands of Kauai and Niihau.

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

CASE NOTES

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

§ 33. Apportionment of senators.

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

In the first senatorial district, five;

In the second senatorial district, two;

In the third senatorial district, five;

In the fourth senatorial district, five;

In the fifth senatorial district, five;

In the sixth senatorial district, three.

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

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

CASE NOTES

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

§ 34. Qualifications of senators.

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

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

CASE NOTES

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

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

THE HOUSE OF REPRESENTATIVES.

§ 35. House of Representatives; Number.

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

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

§ 36. Term of office.

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

CASE NOTES

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

§ 37. Vacancies.

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

§ 38. Representative Districts.

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

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

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

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

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

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

Sixth representative district: The islands of Molokai and Lanai;

Seventh representative district: The islands of Maui and Kahoolawe;

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

§ 39. Apportionment of Representatives.

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

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

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

CASE NOTES

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

§ 40. Qualifications of representatives.

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

Have attained the age of twenty-five years;

Be a citizen of the United States;

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

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

CASE NOTES

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

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

LEGISLATION.

§ 41. Sessions of the legislature.

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

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

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

§ 42.

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

§ 43.

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

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

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

§ 44. Enacting clause - English language.

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

OPINIONS OF ATTORNEY GENERAL

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

§ 45. Title of laws.

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

OPINIONS OF ATTORNEY GENERAL

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

§ 46. Reading of bills.

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

CASE NOTES

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

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

OPINIONS OF ATTORNEY GENERAL

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

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

OPINIONS OF ATTORNEY GENERAL

§ 48. Signing bills.

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

CASE NOTES

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

OPINIONS OF ATTORNEY GENERAL

VETO.

§ 49. Veto of Governor.

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

CASE NOTES

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

§ 50. Procedure upon receipt of veto.

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

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

§ 51. Failure to sign or veto.

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

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

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

CASE NOTES

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

APPROPRIATIONS.

§ 52.

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

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

CASE NOTES

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

OPINIONS OF ATTORNEY GENERAL

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

§ 53.

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

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

CASE NOTES

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

§ 54.

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

CASE NOTES

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

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

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

LEGISLATIVE POWER.

§ 55.

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

I. GENERAL CONSIDERATION.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. TAXATION.

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

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

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

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

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

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

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

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

III. APPROPRIATIONS.

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

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

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

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

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

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

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

IV. DIVORCE.

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

V. LOTTERIES.

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

VI. BONDS.

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

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

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

VII. EMINENT DOMAIN.

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

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

VIII. REAPPORTIONMENT.

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

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

OPINIONS OF ATTORNEY GENERAL

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

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

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

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

TOWN, CITY, AND COUNTY GOVERNMENT.

§ 56.

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

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

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

CASE NOTES

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

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

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

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

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

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

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

ELECTIONS.

§ 57. Exemptions of electors on election day.

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

§ 58.

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

§ 59. Method of voting for representatives.

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

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

§ 60. Qualifications of voters for representatives.

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

First. Be a citizen of the United States.

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

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

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

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

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

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

CASE NOTES

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

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

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

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

OPINIONS OF ATTORNEY GENERAL

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

LEGAL PERIODICALS

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

§ 61. Method of voting for senators.

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

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

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

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

CASE NOTES

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

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

OPINIONS OF ATTORNEY GENERAL

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

§ 63.

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

OPINIONS OF ATTORNEY GENERAL

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

§ 64.

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

§ 65.

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

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

OPINIONS OF ATTORNEY GENERAL

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

ARTICLE 3. The Executive.

§ 66. The executive power.

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

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

CASE NOTES

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

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

§ 67. Enforcement of law.

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

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

CASE NOTES

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

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

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

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

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

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

§ 68. General powers of the governor.

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

CASE NOTES

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

§ 69. Secretary of the Territory; acting secretary.

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

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

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

§ 70. Acting governor in certain contingencies.

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

§ 71. Attorney-general.

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

CASE NOTES

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

§ 72. Treasurer.

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

CASE NOTES

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

§ 73. Commissioner of public lands.

(a) That when used in this section -

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

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

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

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

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

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

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

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

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

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

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

(i) The persons entitled to take under any such certificate, lease, or agreement shall be determined by drawing or lot, after public notice as hereinafter provided; and any lot not taken or taken and forfeited, or any lot or part thereof surrendered with the consent of the commissioner, which is hereby authorized, may be disposed of upon application at not less than the advertised price by any such certificate, lease, or agreement without further notice. The notice of any sale, drawing, or allotment of public land shall be by publication for a period of not less than sixty days in one or more newspapers of general circulation published in the Territory: Provided however, That (1) lots may be sold for cash or on an extended time basis, as the Commissioner may determine, without recourse to drawing or lot and forthwith patented to any citizen of the United States applying therefor, possessing the qualifications of a homesteader as now provided by law, and who has qualified for and received a loan under the provisions of the Bankhead-Jones Farm Tenant Act, as amended or as may hereafter be amended, for the acquisition of a farm, and (2) with or without recourse to drawing or lot, as the commissioner may determine, lots may be leased with or without a right of purchase, or may be sold for cash or on an extended time basis and forthwith patented, to any citizen of the United States applying therefor if such citizen has not less than two years' experience as a farm owner, farm tenant, or farm laborer: And provided further, That any patent issued upon any such sale shall contain the same restrictive provisions as are now contained in a patent issued after 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 in any irrigation project formed or to be formed by the Territorial agency responsible therefor and making the land subject to assessments made or to be made for such irrigation project, which assessment shall be a first charge against the land. For failure to pay the assessments or other breach of the condition the land may be forfeited and sold pursuant to the provisions of this Act, and, when sold, so much of the proceeds of sale as are necessary therefor may be used to pay any unpaid assessments.

( j) The commissioner, with the approval of the governor, may give to any person (1) who is a citizen of the United States or who has legally declared his intention to become a citizen of the United States and hereafter becomes such, and (2) who has, or whose predecessors in interest have, improved any parcel of public lands and resided thereon continuously for the ten years next preceding the application to purchase, a preference right to purchase so much of such parcel and such adjoining land as may reasonably be required for a home, at a fair price to be determined by three disinterested citizens to be appointed by the governor. In the determination of such purchase price the commissioner may, if he deems it just and reasonable, disregard the value of the improvements on such parcel and adjoining land. If such parcel of public lands is reserved for public purposes, either for the use of the United States or the Territory of Hawaii, the commissioner may with the approval of the governor grant to such person a preference right to purchase public lands which are of similar character, value, and area, and which are situated in the same land district. The privilege granted by this paragraph shall not extend to any original lessee or to an assignee of an entire lease of public lands.

(k) The commissioner may also, with such approval, issue, for a nominal consideration, to any church or religious organization, or person or persons or corporation representing it, a patent for any parcel of public land occupied continuously for not less than five years heretofore and still occupied by it as a church site under the laws of Hawaii.

(l) No sale of lands for other than homestead purposes, except as herein provided, and no exchange by which the Territory shall convey lands exceeding either forty acres in area or $15,000 in value shall 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 specified purposes (but not including leases of minerals or leases providing for the mining of minerals), for terms up to but not in excess of sixty-five years. There shall be a board of public lands, the members of which are to be appointed by the governor as provided in section 80 of this Act, and until the legislature shall otherwise provide said board shall consist of six members, and its members be appointed for a term of four years: Provided, however, That the commissioner shall, with the approval of said board, sell to any citizen of the United States, or to any person who has legally declared his intention to become a citizen, for residence purposes lots not exceeding three acres in area; but any lot not sold after public auction, or sold and forfeited, or any lot or part thereof surrendered with the consent of the commissioner, which consent is authorized, may upon application be sold without further public notice or auction within the period of two years immediately subsequent to the day of the public auction, at the advertised price if the sale is within the period of six months immediately subsequent to the day of the public auction, and at the advertised price or the price fixed by a reappraisal of the land, whichever is greater, if the sale is within the period subsequent to the said six months but prior to the expiration of the said two years: and that sales of Government lands or any interest therein may be made upon the approval of said board for business uses or other undertakings or uses, except those which are primarily agricultural in character, whenever such sale is deemed to be in the interest of the development of the community or area in which said lands are located, and all such sales shall be limited to the amount actually necessary for the economical conduct of such business use or other undertaking or use: Provided further, That no exchange of Government lands shall hereafter be made without the approval of two-thirds of the members of said board, and no such exchange shall be made except to acquire lands directly for public uses: Provided further, That in case any lands have been or shall be sold pursuant to the provisions of this paragraph for any purpose above set forth and/or subject to any conditions with respect to the improvement thereof or otherwise, and in case any said lands have been or shall be used by the United States of America, including any department or agency thereof, whether under lease or license from the owner thereof or otherwise, for any purpose relating to war or the national defense and such use has been or shall be for a purpose other than that for which said lands were sold and/or has prevented or shall prevent the performance of any conditions of the sale of said lands with respect to the improvement thereof or otherwise, then, notwithstanding the provisions of this paragraph or of any agreement, patent, grant, or deed issued upon the sale of said lands, such use of said lands by the United States of America, including any department or agency thereof, shall not result in the forfeiture of said lands and shall result in the extension of the period during which any conditions of the sale of said lands may be complied with for an additional period equal to the period of the use of said lands by the United States of America, including any department or agency thereof.

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

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

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

(p) Nothing herein contained shall be construed to prevent said commissioner from surveying and opening for homestead purposes and as a single homestead entry public lands suitable for both agricultural and pastoral purposes, whether such lands be situated in one body or detached tracts, to the end that homesteaders may be provided with both agricultural and pastoral lands wherever there is demand therefor; nor shall the ownership of a residence lot or tract, not exceeding three acres in area, hereafter disqualify any citizen from applying for and receiving any 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 otherwise provided by the Congress, be made by the commissioner or under his direction, for which purpose, if necessary, the land may be transferred to his department from any other department by direction of the governor, and all patents and deeds of such land shall issue from the office of the commissioner, who shall countersign the same and keep a record thereof. Lands conveyed to the Territory in exchange for other lands that are subject to the land laws 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 previously been public lands of Hawaii. All orders setting aside lands for forest or other public purposes, or withdrawing the same, shall be made by the governor, and lands while so set aside for such purposes may be managed as may be provided by the laws of the Territory; the provisions of this paragraph may also be applied where the "public purposes" are the uses and purposes of the United States, and lands while so set aside may be managed as may be provided by the laws of the United States. The commissioner is hereby authorized to perform any and all acts, prescribe forms of oaths, and, with the approval of the governor and said board, make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this section and the land laws of Hawaii into full force and effect.

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

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

(r) Whenever any remnant of public land shall be disposed of, the commissioner of public lands shall first offer it to the abutting landowner for a period of three months at a reasonable price in no event to be less than the fair market value of the land to be sold, to be determined by a disinterested appraiser or appraisers, but not more than three, to be appointed by the governor; and, if such owner fails to take the same, then such remnant may be sold at public auction at no less than the amount of the appraisal: Provided, That if the remnant abuts more than one separate parcel of land and more than one of the owners of these separate parcels are interested in purchasing said remnant, the remnant shall be sold to the owner making the highest offer above the appraised value.

The term "remnant" shall mean a 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 feet in size, or, in the case of a suburban or rural area, no larger than one and one-half acres in size.

Any person or persons holding an unpatented homestead under a special homestead agreement, entered into prior to the effective date of this paragraph, excluding those homesteads under the control of the Hawaiian Homes Commission as provided in section 203 of the Hawaiian Homes Commission Act, 1920, shall be entitled to a reamortization of the indebtedness due the Territory of Hawaii on account of such special homestead agreement upon filing an application for the reamortization of said indebtedness with the commissioner within six months after the effective date of this paragraph. Upon the filing of any such application, the commissioner shall determine the balance due the Territory in the following manner: The amount of the principal which would have been paid during the full period of payment provided for in the special homestead agreement had the agreement been duly performed according to its terms and the amount of the interest which would have been paid under the special homestead agreement prior to the effective date of this paragraph had the agreement been duly performed according to its terms shall be computed and added together; from the sum of these amounts there shall be deducted all moneys that have been actually paid to the Territory on account of the special homestead agreement, whether as principal or as interest. The balance thus determined shall be the total amount remaining due and payable for the homestead covered by such special homestead agreement, any other terms, conditions, or provisions in any of said agreements, or any provisions of law to the contrary notwithstanding: Provided, however, That nothing herein contained shall be deemed to excuse the payment of taxes and other charges and assessments upon unpatented homestead lands as provided in said agreements, nor to excuse or modify any term, condition, or provision of said agreements other than such as relate to the principal and interest payable to the Territory. The total amount remaining due, determined as hereinabove provided, shall be payable in fifteen equal biennial installments. Simple interest at the rate of three per centum per annum shall be charged upon the unpaid balance of such installments, whether matured or unmatured, said interest to be computed from the effective date of this paragraph and to be payable semi-annually. The first payment on account of principal shall be due two years subsequent to the effective date of this paragraph, and thereafter the due dates of principal payments shall be at regular two-year periods; the first payment on account of interest shall be due six months subsequent to the effective date of this paragraph, and thereafter the due dates of interest payments shall be at regular six-month periods. In case of default in payments of principal or interest on the due dates as hereby fixed the commissioner may, with the approval of the governor, with or without legal process, notice, demand, or previous entry, take possession of the land covered by any such special homestead agreement and thereby determine the estate created by such agreement as hereby modified, whereupon liability for payment of 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 as provided by said agreements, and all other conditions therein stipulated have been complied with, except as herein excused or modified, the said special homestead agreements shall be deemed to have been performed by the holders thereof, and land-patent grants covering the land described in such agreements shall be issued to the parties mentioned therein, or their heirs or assigns, as the case may be.

Neither the Territory of Hawaii nor any of its officers, agents or representatives shall be liable to any holder of any special homestead agreement, past or present, whether or not a patent shall have issued thereon, or to any other person, for any refund or reimbursement on account of any payment to the Territory in excess of the amount determined as provided by the preceding paragraph, and the legislature shall not recognize any 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, cc 616, 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 Stat 709; 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 effective date of the last two paragraphs of this section was June 12, 1940. The Act of July 10, 1937, c. 484, 50 Stat. 508, 48 U.S.C. § 562g, provides in part: "That the Legislature of the Territory of Hawaii may create a public corporate authority to engage in slum clearance, or housing undertakings, or both, within such Territory. . . . The legislature . . . may, without regard to any federal Acts restricting the disposition of public lands of the Territory, authorize the commissioner of public lands, the Hawaiian homes commissioners, and any other officers of the Territory having power to manage and dispose of its public lands, to grant, convey, or lease to such authority parts of the public domain, and may provide that any of the public domain or other property acquired by such authority may be mortgaged by it as security for its bonds. . . ."

The Act of February 27, 1920, c. 89, 41 Stat. 452, 16 U.S.C. § 392, provided that the provisions of section 73 relating to exchanges should not apply with respect to the acquisition of privately owned lands within Hawaii National Park.

The Act of August 7, 1946, c. 787, 60 Stat. 884, provided that the provisions relating to exchange should not apply 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 public lands to certain lessees, permittees and others.

The amendments of July 9, 1921, are part of the "Hawaiian Homes Commission Act, 1920." See Joint Resolution of annexation and the note thereto, RLH 1955, page 13, in regard to the cession of public lands to the United States, their status, disposition thereof, application of the proceeds thereof, and grants of franchises, between annexation and the establishment of territorial government. See Chronological Note of Acts Affecting Hawaii for Acts of Congress, Presidential proclamations and Executive orders relating to public lands, RLH 1955, page 9ff. See also the note to §§ 75, 89, 91, 95, 97 and 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 48 U.S.C. §§ 1501 to 1508), relating to disabilities of aliens to hold land in territories in general applies to Hawaii.

For related federal acts, see the Act of 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 of government lands by removing the conditions therein restricting use of such 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, authorizing the exchange of public lands for private lands of equal value required for highway purposes.

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

For related territorial acts, effective upon approval by Congress of legislation making the acts valid without approval by Congress, or upon ratification by the state legislature, see L. 1957, c. 39, permitting holders of certain public lands to mortgage the 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 unsuitable for development as a separate unit, and, in case of an urban area, no larger than five thousand square feet in size, or in case of a suburban or rural area, no larger than one and one-half acres in size." In addition, see L. 1959, c. 269, authorizing the subdivision, improvement and leasing of public lands for residential purposes to qualified persons selected by drawing without public auction. Furthermore, see L. 1959, J.R. 2, s. 1, amending this section 73(g) by adding to the first sentence proviso to read: "Provided, That if consent be given to a mortgage or other transfer for security purposes to an established lending agency and such agency be the Federal Housing Administration or other similar federal or territorial agency or a corporation authorized to do business as a lending agency in the Territory or elsewhere in the United States, no further consent shall be required for: (1) any subsequent assignment or reassignment made by such agency or assignee thereof to a like lending agency for refinancing or other security purposes; or (2) any transfer made at a foreclosure sale held pursuant to the provisions of said mortgage or transfer for security purposes; or (3) any subsequent transfer made by the purchaser at said foreclosure sale if the transferor shall be such agency or assignee thereof, provided that all other or further disposition shall be made only in accordance with the provisions of this act."

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

CASE NOTES

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

Assignment of mortgage. - A mortgage of a homestead could not be assigned without the consent in writing of the 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 authority to the commissioner of public lands to sell public lands in the interest of the development of the community or area in which the lands were located did 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. - The authority granted by this section includes the power to withdraw leased lands when it is desired to devote them to homestead purposes or to devote them to public purposes. It does not include the power to withdraw them in order that with their proceeds other lands can be acquired which in turn 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 public purposes encompasses uses of the United States as well as the state. United States 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 any of the purposes embodied in lease would result in a determination of the lease, and lessee had no claim because under such a circumstance he expressly renounced all claim to the improvements and was presumed to have erected them with that understanding. Hee Kee Chun v. United States, 194 F.2d 176 (9th Cir. 1952).

Where the express terms of lease contemplated varying methods by which the property could revert to the lessor, those methods were of equal force and effect unless the contrary appeared. Hee Kee 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 homesteader any sum in excess of the value of his improvements as legally ascertained would amount to a gift or gratuity and would be void. In re Koki, 25 Haw. 406 (1920).

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

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

Constructive trust. - A complainant filed a bill in equity for the declaration and enforcement of a constructive trust relating to a piece of land. The respondent had become entitled to a "preference right" to purchase the land from the government at an appraised valuation. While the respondent had no children of her own and while the complainant was her keiki hanai (foster child), the respondent was not under any legal obligation to place the title in the complainant's name, nor did it appear that the surrounding circumstances were such as to place her under any moral obligation so to do. Kamakaokauwila Hookaia v. Waiwaiole Kealoha, 30 Haw. 446 (1928).

Decree conclusive. - Because full authority with respect to the administration, management, and disposition of Hawaii's public lands had been committed to Hawaii by Congress by the terms of this section and § 91 of the Organic Act, a land court decree was conclusive upon the United States. Sotomura v. 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. Territory of Haw., 21 Haw. 136 (1912); In re Taxes Waiohinu Agric. & Grazing Co., 23 Haw. 621 (1917); Robinson v. Bailey, 28 Haw. 462 (1925); Correa v. Waiakea Mill Co., 32 Haw. 310 (1932); Correa v. Waiakea Mill Co., 32 Haw. 372 (1932); Waiakea Mill Co. v. Vierra, 35 Haw. 550 (1940); Bishop v. 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); Territory of 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, 235 F. 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 Lands v. 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 acts of 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 modified or changed by the Admission Act or by the Constitution, and will continue in effect unless altered or repealed by the legislature. Op. Att'y Gen. No. 61-68 (1961).

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

Proposed permit to an individual for the use of the Waiahole Forest Reserve could not be issued by the board of commissioners of agriculture and forestry. Such a disposition of an interest in land could only be made by the commissioner of public lands or under his 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 aside public lands for public purposes, §§ 206 and 212 of the Hawaii Homes Commission Act did not authorize the governor to set aside Hawaiian home lands temporarily returned by the Hawaiian homes commission; unleased Hawaiian home lands, prior to 1959, could be leased to the general public for revenue purposes only pursuant to subsection (q). Op. Att'y Gen. No. 75-3 (1975). An executive order in 1955 purporting to set aside Hawaii home lands for a park pursuant to subsection (q) did not have to be withdrawn under § 171-11 because the executive order was invalid and of no effect under 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 for military purposes previous to the passage of the Hawaiian Homes Commission Act were not "public lands" and therefore were not "available lands" granted by that act to the Hawaiian homes commission. Op. Att'y Gen. No. 64-44 (1964).

Appraisals. - In selling lands to the territory, appraisers may not receive less than the fair value of such lands as determined by their appraisals. In appraising such lands, the factors of a use which in effect would lessen the value of the lands of the territory should not be used, and therefore, in the sale of lands the appraisers must appraise lands at their highest and best use in order to determine the fair value to which the territory is entitled. Op. Att'y Gen. 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' Administration Home 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 Jurisdictional Conflict over the Internal Waters and Submerged Lands of the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

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

§ 74. Commissioner of agriculture and forestry.

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

CASE NOTES

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

§ 75. Superintendent of public works.

That there shall be a superintendent of public works, who shall have the powers and duties of the superintendent of public works and those of the powers and duties of the minister of the interior 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 and cemeteries, and other grounds and lands now under the control and management of the minister of the interior, and those of the powers and duties of the minister of finance and collector-general which relate to pilots and harbor masters under the laws of Hawaii, except as changed by this Act and subject to modification by the legislature. In said laws the word "legislature" shall be substituted for "councils" and the words "circuit court" 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 of public instruction, who shall have the powers and perform the duties conferred upon and required of the minister of public instruction by the laws of Hawaii as amended by this Act, and subject to modification by the legislature.

It shall be the duty of the United States Commissioner of Labor to collect, assort, arrange, and present in reports in nineteen hundred and five, and every five years thereafter, statistical details 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 subjects as Congress may by law direct. The said Commissioner is especially charged to ascertain the highest, lowest, and average number of employees engaged in the various industries in the Territory, to be classified as to nativity, sex, hours of labor, and conditions of employment, and to report the same to Congress.

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

Editor's Note. - The duties of the United States Commissioner of Labor, referred to in this section, are now 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 deputy comptroller, who shall have the powers and duties conferred upon and required by the auditor-general and deputy auditor-general, respectively, by Act thirty-nine of the session laws as amended by this Act, subject to modification by the legislature. In said Act "officer" shall be substituted for "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 shall be appointed by the Governor by and with the advice and consent of the Senate, who shall serve for a term of eight years and until a successor shall have been duly appointed. He shall have such powers and duties relating to the post-audit of Territorial and county accounts and appropriations as may be prescribed by law. The legislature, by a two-thirds vote of the members in joint session, may remove the post-auditor at any time for cause.

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

§ 78. Surveyor.

That there shall be a surveyor, who shall have 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 sheriff and deputies, who shall have the powers and duties of the marshal and deputies of the Republic of Hawaii under the laws of Hawaii, except as changed by this 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, and salaries of officers.

The President shall nominate and, by and with the advice and consent of the Senate, appoint the chief justice and justices of the supreme court, who shall hold office for the term of seven years unless sooner removed by the President, and the judges of the circuit courts who shall hold office for the term of six years, unless sooner removed by the President; and the governor shall nominate and, by and with the advice and consent of the senate of the Territory of Hawaii, appoint the attorney-general, treasurer, commissioner of public lands, commissioner of agriculture and forestry, superintendent of public works, superintendent of public instruction, auditor, deputy auditor, surveyor, high sheriff, members of the board of health, commissioners of public instruction, board of 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; and he may make such appointments when the senate is not in session by granting commissions, which shall, unless such appointments are confirmed, expire at the end of the next session of the senate. He may, by and with the advice and consent of the senate of the Territory of Hawaii, remove from office any of such officers. All such officers shall hold office for four years and until their successors are appointed and qualified, unless sooner removed, except the commissioners of public instruction and the members of said boards, whose term of office shall be as provided by the laws of the Territory of Hawaii.

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

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

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

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

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

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

[Am March 3, 1905, c 1465, § 2, 33 Stat 1035; July 9, 1921, c 42, § 312, 42 Stat 119; May 9, 1956, c 237, § 1, 70 Stat 130; Aug. 28, 1958, Pub L 85-793, 72 Stat 957]

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

CASE NOTES

Appointment of circuit court judges. - Section 603-41, which provides for the temporary assignment of a circuit judge to another circuit, is not in conflict with this section. Section 603-41 does not purport to authorize the appointment of a judge of any circuit in case of a vacancy. It proceeds upon the assumption that in due course the power of appointment referred to in this section will be exercised by 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 does not 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 advice and consent of the Senate and who is to hold his office for four years unless sooner removed. In re Austin, 15 Haw. 114 (1903).

Cited in Robertson v. Pratt, 13 Haw. 590 (1901); Hind v. Wilder's S.S. Co., 14 Haw. 215 (1902); Appeal of Cooper, 14 Haw. 282 (1902); Ninomiya v. Kepoikai, 15 Haw. 273 (1903); Dole v. Cooper, 15 Haw. 297 (1903); Territory of Haw. v. Supervisors of Oahu, 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 Territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. And until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force except as herein otherwise provided.

Historical note. - By the Act of April 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 whole act. - This section is but one of many sections, all of which are entitled to equal respect, and it is evident that to obtain a comprehensive view of the intention of Congress the courts are bound to consider the whole act 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. - The equity and probate jurisdiction of circuit judges at chambers existing under the Hawaiian Constitution, which vested the judicial power in one supreme 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 saved by this section, continuing in force the previous laws of Hawaii concerning the courts and their procedure. Carter v. Gear, 197 U.S. 348, 25 S. Ct. 491, 49 L. Ed. 787 (1905).

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

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

Auditing board. - The theory that the legislature could not create an inferior court of final jurisdiction would have no application to a special commission in the nature of an auditing board, 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 the provisions of the Organic Act or the United States Constitution. Territory of Haw. v. Martin, 19 Haw. 201 (1908).

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

Sentencing. - Former indeterminate sentence statute was not unconstitutional under this section in impinging upon the judicial power and discretion vested in the trial court. Territory v. Armstrong, 22 Haw. 526 (1915).

Appeals. - Not until by Act of Congress of March 3, 1905, were appeals allowed from the supreme court of Hawaii to the supreme court of the United States on other than federal questions. 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); Territory v. 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); Territory v. Van Dalden, 33 Haw. 113 (1934); International Longshoremen's & Warehousemen's Union 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 of a chief justice and two associate justices, who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States, by and with the advice and consent of the Senate of the United States, and may be removed by the President: Provided, That any vacancy or vacancies occurring within the court, whether by reason of disqualification, disability, death, resignation, removal, absence from the Territory or inability to attend, or for any other reason, shall, for the hearing and determination of any cause, be temporarily filled as provided by the law of said Territory, and, if there be no such law, then by appointment from among the circuit judges of the Territory by the remaining justices or justice, and if there be no such justice, then by the governor.

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

Cross References. - On appointments to the supreme court, see § 80 of the Organic Act. On amount of salaries, see § 92. As to nonreduction of salaries during term of office, see § 80. As to appeal and error, see § 86.

CASE NOTES

Vacancies. - Under this section and RLH 1945, § 9610 (see now § 602-10), parties to pending causes could not be compelled to go to trial before the two remaining justices during a vacancy, however created. Moreover, those sections did not empower the two remaining justices to authorize a circuit judge to sit with them to hear and determine causes during a vacancy in the office of a third former 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 the judicial department, including civil and criminal procedure, except as amended by this Act, are continued in force, subject to modification by Congress, or the legislature. The provisions of said laws or any laws of the Republic of Hawaii which require juries to be composed of aliens or foreigners only, or to be constituted by impaneling natives of Hawaii only, in civil and criminal cases specified in said laws, are repealed, and all juries shall hereafter be constituted without reference to the race or place of nativity of the jurors; but no person who is not a citizen of the United States and twenty-one years of age and who cannot understandingly speak, read, and write the English language shall be a qualified juror or grand juror in the Territory of Hawaii. No person shall be convicted in any criminal case except by unanimous verdict of the jury. No plaintiff or defendant in any suit or proceeding in a court of the Territory of Hawaii shall be entitled to a trial by a jury impaneled exclusively from persons of any race. Until otherwise provided by the legislature of the Territory, grand juries may be drawn in the manner provided by the Hawaiian statutes for drawing petty juries, and shall sit at such times as the circuit judges of the respective circuits shall direct; the number of grand jurors in each circuit shall be not less than thirteen, and the method of the presentation of cases to said grand jurors shall be prescribed by the supreme court of the Territory of Hawaii. The several circuit courts may subpoena witnesses to appear before the grand jury in like manner as they subpoena witnesses to appear before their respective courts.

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

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

CASE NOTES

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

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

Waiver of jury trial. - Section 806-61, as amended by Act 36, L. 1931, providing the procedure to accomplish jury waiver in criminal cases, did not violate this section or Art. III, § 2, cl. 3, or the Sixth Amendment of the Constitution of the United States. Territory v. Van Dalden, 33 Haw. 113 (1934).

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

Cited in Fugihara Oriemon v. Territory of 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, 47 L. Ed. 1016 (1903); Territory of Haw. v. Ng Kow, 15 Haw. 602 (1904); Carter v. Gear, 16 Haw. 242 (1904); In re Anin, 17 Haw. 341 (1906); In re EWA Plantation 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 re Grand Jury, 20 Haw. 255 (1910); Wynne v. United States, 217 U.S. 234, 30 S. 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); Territory of 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.2d 460 (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 or juror in any case in which his relative by affinity or by consanguinity within 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 or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which he has been of counsel or on an appeal from any decision or judgment rendered by him, and the legislature of the Territory may add other causes of disqualification to those herein enumerated.

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

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

CASE NOTES

Intent of Congress. - The intent of Congress, as expressed in this section, was that a judge should not sit in a case where, with reference to that case, the relation of attorney and client had existed between him and one of the parties, whether he was personally 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 in this section that "No judge shall sit on an appeal, or new trial, in any case in which he may have given a previous judgment" applies to only (1) an appeal or (2) a new trial in (3) the same case in which the judge has given a previous judgment. Ex parte Osaki Mankichi, 13 Haw. 570 (1901).

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

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

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

Pecuniary interest essential to disqualification absent relationship between judge and party. - When no relationship exists between the judge and any of the parties, a pecuniary interest in the issue of the suit is essential to disqualification, but when the specified relationship does exist, the mere fact that the judge's relative is a party constitutes a disqualification. The words "either as a plaintiff or defendant" would seem to have been inserted to define the nature of the relative's interest which should be sufficient to disqualify. Smith v. Lindsay, 20 Haw. 262 (1910).

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

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

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

Judge disqualified. - A judge is disqualified if through a relative he has a pecuniary interest in the issue of the case, but the fact that a relative has a pecuniary interest does not disqualify the judge under the terms of this section unless, owing to the nature of the relation, in some way he has a pecuniary interest through the relative, as, for instance, in the case of husband and wife, father and child, or of an obligation, whether moral or legal, to support the relative, or of a derived or common interest due to any cause. In all such 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 to the bench, has been counsel in a justiciable matter which subsequently assumes the form of active litigation, he is disqualified to sit in its hearing and determination. Henry Waterhouse Trust Co. v. Treadway, 29 Haw. 256 (1926).

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

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

Having given an opinion to the trustees of an estate that they had authority to sell a tract of land, and having obtained the approval of the court for such sale, an attorney would be prevented in that matter from sitting as judge in a case in which the action of 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 an attorney by a client are such as to authorize and require the attorney, until revocation or modification of that employment, to institute all legal proceedings necessary to attain the end desired by the client and to defend all legal proceedings instituted by an opponent seeking to frustrate the accomplishment of that desired end, any and all legal proceedings brought, whether in furtherance of or by way of frustrating the desired end, are within the meaning of the reference in this section to the case in which the 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 partnership agreement, all law business coming to either member of a firm, one of whom was 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 be employments of the firm. Where a client hired one of the attorneys, the chief justice was disqualified. The fact that he took no part in the case and had no knowledge of its issues did not alter his status. In re Hawaii Tel. Co., 26 Haw. 405 (1922).

A judge who, in a proceeding instituted in 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 review of the same proceeding by writ of error, even though his client filed in the land court a disclaimer of all interest in the land. In re American Sugar Co., 29 Haw. 438 (1926).

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

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

A justice of the supreme court is not disqualified to sit in a case by reason of having been counsel of record as a member of a partnership which had been retained in the case, he having taken no active part in the case nor advised upon the questions in issue, and there being no statutory provision disqualifying him by reason of having been of counsel. Love v. Love, 17 Haw. 194 (1905).

A justice of the supreme court is not disqualified 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 in certain other and distinct cases at the trial of which he had presided when a circuit judge. The provision in this section that no judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment, does not apply to such a case. Ex parte Ah Oi, 13 Haw. 534 (1901).

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

A circuit judge is not disqualified to hear or determine a partition suit by reason of a pecuniary interest therein because of his having made an order directing the payment of an attorney's fee for services rendered for the judge in a prohibition proceeding growing out of the partition suit, out of a fund in court belonging to the parties to the suit, such order having no connection with the subject matter or issues of that suit. Scott v. Stuart, 22 Haw. 641 (1915).

Chief justice of the supreme court of the Territory was not disqualified to sit in disbarment proceedings where it did not appear that any relative of his, either by affinity or consanguinity within the third degree, was interested in the cause, either as plaintiff or 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 hearing an action of ejectment because he was of counsel in an earlier proceeding for 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 directing a guardian to file an inventory and account because he had acted as one of the attorneys for the petitioner in presenting her petition and securing her appointment as guardian. In re Hitchcock, 20 Haw. 553 (1911).

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

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

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

Removal of district magistrate. - Where a district magistrate as an attorney at law, with full knowledge of the facts, accepts and continues in an employment, the purpose of which is to consummate an illegal marriage and avoid criminal prosecution in a matter that might well come before him as district magistrate, his removal from 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 case becomes subject matter of review on appeal, he should not sit in appellate court. In re Estate of Banning, 9 Haw. 354 (1894).

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

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

Congress, in use of the term "plaintiff or defendant," must have intended a party to the record, one who brings or is bound to appear and answer or defend a cause in court. Lucas v. 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 judgment in the case, so that a trial of the case on the facts was not a new trial within the provisions of the Organic Act. Kumazo Matsumura v. County of Haw., 19 Haw. 197 (1908).

Mandamus does not lie to make judge reverse his decision of no disqualification. - Where a judge has determined that 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 the cause. 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, 4 U.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., 35 Haw. 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 Representatives of the United States, to serve during each Congress, shall be elected by the voters qualified to vote for members of the house of representatives of the legislature.

Such Delegate shall possess the qualifications necessary for membership of the senate of the legislature of Hawaii. Such election shall be held on the first Tuesday after the first Monday in November of every even year and at such places as shall be designated by the secretary of the Territory. The ballot for Delegate shall be such as the legislature of Hawaii may designate, and until provision is made by the territorial legislature the ballot shall be of pink paper and shall be of the same general form as those used for the election of representatives to the legislature.

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

The person having the greatest number of votes shall be declared by the governor duly elected, and a certificate shall be given accordingly.

Every such Delegate shall have a seat in 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 governor of the Territory is directed to call a special election to fill such vacancy: Provided, however, That no vacancy shall be filled which occurs within five months of the expiration of a Congressional term.

The legislature of the Territory of Hawaii shall have the right to alter or amend any part of the election laws of said Territory, including those providing for an election of Delegate to Congress, and its action shall be the law, with full binding force, until altered, 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 the Territory, did not authorize the legislature to provide by statute for the election of members of the legislature at a time other than that fixed by § 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 laws of the United States relating to removal of causes, appeals and other matters and proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii.

[Am March 3, 1909, c 269, § 1, 35 Stat 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 Stat 119; 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 Stat 4]

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

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

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

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

CASE NOTES

This section placed courts of the Territory on the same footing as courts of the several States so far as appeals to and writs of error from the federal courts were concerned. Hind v. Wilder's S.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 the Territory in a relatively similar position to the federal judicial system as 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-Tucker Act, 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 review of decisions of the territorial supreme court in criminal cases were limited to 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 under this 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 or suggested before the assignment of error, a judgment of the supreme court of 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 allowed from the supreme court of Hawaii to the supreme court of the United States on other than federal questions. In re Estate of Allen, 35 Haw. 501 (1940).

Jurisdiction. - The language from the Organic Act, as amended, apparently makes applicable to the Territory the provisions of Section 76, 28 U.S.C.A. as applied to state courts. This would 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 the territory is court of federal jurisdiction only, made so by Section 86 of the Act of Congress of April 30, entitled an Act to provide a government for 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. District Court for the District of Hawaii, the defendant waived any right of objection to the district court's jurisdiction of the person by entering into stipulation extending time to answer. Cornn v. Wardell, 4 U.S.D.C. Haw. 605 (1915).

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

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

Joinder of person materially interested in subject of suit. - The general rule, as to parties, is that when a bill is brought for relief, all persons materially interested in the subject 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 complete and final decree between all parties interested. But this is a rule established for 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 to be restricted to parties, whose interest is involved in the issue, and is 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 to territorial court's decisions. - The rule that a federal court will pay deference to decisions of territorial courts on matters of local concern is applicable to decisions of the supreme court of the Territory. Waialua Agric. Co. v. Christian, 305 U.S. 91, 59 S. Ct. 21, 83 L. Ed. 60, reh'g denied, 305 U.S. 673, 59 S. Ct. 240, 83 L. Ed. 2d 436 (1938).

It is well settled that local tribunals will not be overruled upon matters of purely local concern, excepting in cases 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 courts and which by reason of the decisions of the latter have become established in local practice, will be governed by the state decisions, and this regardless of 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's construction of deed violated the Constitution or any law of the United States. 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 of the Supreme Court of Hawaii on questions of local law is not to be exercised in 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 removal of causes and other matters and proceedings as between the federal courts and the courts of the several states shall govern in such matters and 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 for review. - Where there was no special finding of facts, the court's review was limited to rulings on the pleadings and to those rulings in the progress of the trial which were excepted to at the time and were duly presented by the bill of exceptions, as required by statute. United States v. 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 liberally construed in favor of right of discharge. Bockus v. Yuen, 29 F.2d 205 (9th Cir. 1928).

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

Action at law tried by court without written waiver of jury. - If an action at law is tried by the court without the written waiver of a jury, the jurisdiction of the appellate court to review the judgment is limited to the process, pleadings, and judgment. This latter proposition is too firmly established to require citation of authority. United States v. Yamoto, 50 F.2d 599 (9th Cir. 1931).

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

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

It is fundamental that appellant must either 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 administrator has an interest in a controversy and he is the only party asking a review of the judgment, the appeal should be dismissed. King v. Buttolph, 30 F.2d 769 (9th Cir. 1929).

Rulings not incorporated in bill of exceptions not considered by court. - The case transcript incorporated many matters which were not included in the bill of exceptions and were not properly a part of the record. That portion of the record purported to contain proceedings had in court, the rulings of the court thereon, and an order allowing an exception thereto. But the formal allowance of exceptions in this fashion was not the equivalent of a bill of exceptions. Consequently, those rulings, except insofar as they were incorporated in the bill of exceptions, could not be considered by the court. Lau Lee v. United States, 67 F.2d 156 (9th Cir. 1933).

Cited in Hawaiian Tramways Co. v. Rapid Transit & Land Co., 1 U.S.D.C. Haw. 164 (1901); Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); Equitable Life 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. Mo Hock 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 constitute a district for the collection of internal revenue of the United States, with a collector, whose office shall be at Honolulu, and deputy collectors at such other places in the several islands as the secretary of the Treasury shall direct.

§ 88. Customs district.

That the Territory of Hawaii shall comprise a customs district of the United States, with ports of entry and delivery at 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 other legislation by Congress relating to customs and kindred subjects, and note to Joint Resolution of annexation, as to customs duties between annexation and the establishment of Territorial government in RLH 1955.

ARTICLE 6. Miscellaneous.

§ 89. Wharves and Landings.

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

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

Historical note. - The Act of December 22, 1942, c. 803, 56 Stat. 1071, authorizes federal departments and agencies to pay the Territory "the reasonable value, as determined by the department or agency concerned," of the use of such property, notwithstanding this section, during the period from Jan. 1, 1942, until six months after the 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 when this Act takes effect, shall not be sold, but, together with those that shall thereafter be received at such offices as herein provided, shall be canceled under the direction of the Postmaster-General of the United States; those previously sold and uncanceled shall, if presented at such offices within six months after this Act takes effect, be received at their face value in exchange for postage stamps, postal cards, and stamped envelopes of the United States of the same aggregate face value and, so far as may be, of such denominations as desired.

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

§ 91.

That, except as otherwise provided, the public property ceded and transferred to the United States by the Republic of 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 shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii. And any such public property so taken for the uses and purposes of the United States may be restored to its previous status by direction of the President; and the title to any such public property in the possession and use of the Territory for the purposes of water, sewer, electric, and other 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, and the title to any property so transferred to the Territory may thereafter be transferred to any city, county, or other political subdivision thereof, or the University of Hawaii by direction of the governor when thereunto authorized by the legislature; Provided, That when any such public property so taken for the uses and purposes of the United States, if instead of being used for public purpose, is thereafter by the United States leased, rented, or granted upon revocable permits to private parties, the rentals or consideration shall be covered into the treasury of the Territory of Hawaii for the use and benefit of the purposes named in this section.

[Am May 27, 1910, c 258, § 7, 36 Stat 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, providing against loss of title of U.S. land.

See the Joint Resolution of Annexation and the note thereto, in regard to ceded public lands, at RLH 1955, page 13. 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. 1925 and R.L. 1935 and the records of the commissioner of public lands.

Under the original section, the Territory could not sell ceded movable property, but previous sales were ratified and 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 set land aside for use of United States. As to definition of "public lands," see § 171-2.

CASE NOTES

Purpose. - It was the purpose of Congress, as expressed in the Organic Act, to leave the ceded public lands in the control of the Territory to be administered by it for the benefit of its people. There is in this benign program no proper place for advantaging the United States at the expense of the inhabitants on grounds which, though having the semblance of legality, affront the sense of justice. United States 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. - Condemnation is not the appropriate procedure for the taking of lands for public use by 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. United States v. Chun Chin, 150 F.2d 1016 (9th Cir. 1945).

Compensation. - The taking of public land under authority of this section is not subject to the condition that compensation be paid, as in condemnation, for the unexpired portion of a 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 United States. - Because full authority with respect to the administration, management, and disposition of Hawaii's public lands had been committed to Hawaii by Congress by the terms of this section and § 73 of the Organic Act, a land court decree was conclusive upon the United States. Sotomura v. County of Haw., 402 F. Supp. 95 (D. Haw. 1975).

Withdrawal of leased lands for public purposes encompasses uses of United States as well as state. 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).

All of Kahoolawe Island, except for lighthouse portion, was under federal government control, as provided by a series of documents, including the Annexation Joint Resolution of 1898, the 1900 Organic Act, the 1959 Admission Act, and the Land Conveyance Act of 1963. Further, the Annexation Joint Resolution and the Organic Act were 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 (9th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 436 (1978).

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

Maintenance of naval reservation would support conviction of illegal trespass. - Even if the Navy did not possess a fee simple absolute title to the Island of Kahoolawe, the maintenance of 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. Supervisors of 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.2d 446 (1987); Hawaii ex rel. Att'y Gen. ex rel. Dep't of Hawaiian Home Lands v. 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 Jurisdictional Conflict over the Internal Waters and Submerged Lands of the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

§ 92. Salaries, certain officers.

That the following officers shall receive the 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 the Supreme Court of the Territory, $10,500; the associate judges of the Supreme Court, $10,000 each; the judges of the Circuit Court for the First Circuit of the Territory of Hawaii the sum of $7,500 and, to each of the judges of the Second, Third, Fourth and Fifth Circuits of the Territory of Hawaii the sum of $7,000. The governor shall receive annually from the United States, in addition to his salary, (1) the sum of $1,000 for stationery, postage, and incidentals, and (2) his traveling expenses while absent from the capital on official business. The governor is authorized to employ a private secretary who shall receive an annual salary of $3,000 to be paid by the United States.

[Am May 27, 1910, c 258, § 8, 36 Stat 448; July 9, 1921, c 42, § 314, 42 Stat 120; May 29, 1928, c 904, §§ 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 justices of the supreme court and circuit courts during their term of office.

§ 93. Imports from Hawaii into the United States.

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

§ 94. Investigation of fisheries.

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

CASE NOTES

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

§ 95. Repeal of laws conferring exclusive fishing rights.

That all laws of the Republic of Hawaii which confer exclusive fishing rights upon any person or persons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawaii not included in any fish pond or artificial inclosure shall be free to all citizens of the United States, subject, however, to vested rights; but no such vested rights shall be valid after three years from the taking effect of this Act unless established as hereinafter provided.

CASE NOTES

Constitutionality. - This section, which repeals all laws which confer exclusive fishing rights upon any person or persons, is not unconstitutional insofar as it affects those persons who 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 in case of default, are reasonable and conform with due process. Bishop v. Mahiko, 35 Haw. 608 (1940).

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

The language of this section is entirely unambiguous. There can be no doubt that its intent was to repeal all laws of Hawaii which conferred exclusive fishing rights, and that vested rights were not to be excepted or protected unless established judicially by proceedings instituted within two years from the date of the Organic Act. 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 previously been free to citizens and residents alike, to be free to citizens of the United States. Without further enactment or authoritative notice to the contrary, such fisheries remain free to noncitizen residents as well as to citizens. Matsuno v. The Am. Schooner Concord, 3 U.S.D.C. Haw. 227 (1907).

The police power of the territory with reference to the public fisheries was not restricted by this section so as to prevent the enactment of general laws respecting the means or methods by which fish may be taken and forbidding the use of certain kinds of nets. Territory of Haw. v. Moke Makaiwi, 21 Haw. 631 (1913), appeal dismissed, 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 rights at the time of passage of the Organic Act were not affected by the passage of that act, and continue as rights of property, notwithstanding the repealing words of this section. Such rights will remain rights of property until they may be destroyed by condemnation and the payment of value. In re Fukunaga, 16 Haw. 306 (1904).

Fishing rights of persons becoming tenants after passage of Act not vested. - Within the meaning of this section, fishing rights were not vested rights in the case of persons who did not become tenants of any land until after April 30, 1900, the date of 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, created and confirmed rights in favor of landlords in adjacent fishing grounds within the saving clause in the Organic Act of the territory repealing all 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 an ahapuoa is entitled to the adjacent fishing ground within the reef; the statute created vested rights therein within the saving clause of the Organic Act repealing all laws of the Republic of Hawaii conferring exclusive fishing rights. Carter v. Hawaii, 200 U.S. 255, 26 S. Ct. 248, 50 L. Ed. 470 (1906).

Fishery held not included under this section. - Fishery within the Hanapepe river on the Island of Kanai, where the tide to a certain extent rises and falls, the water being a mixture of sea water brought into the river by the action of the tide and fresh water coming down the river, was not included under this section and § 96 of the Organic Act, even though the fish taken were sea fish coming from 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 willfully depriving a Konohiki of his fishing rights by appropriating the tabooed fish of said Konohiki, or otherwise, was repealed by this section. In re Fukunaga, 16 Haw. 306 (1904).

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

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

Konohiki fishing rights are not only subjects of lease, but are in character legal rights of ancient origin, having survived the operation of this section as established vested rights under proceedings provided by § 96 of the Organic Act and recognized as such by § 187A-23. Coney v. Lihue Plantation Co., 39 Haw. 129 (1951).

Private nature of fish ponds. - The Organic Act of 1900, following annexation, repealed all prior laws conferring private rights in seawater fisheries (subject to vested rights), but specifically exempted fish ponds from its scope; a similar provision appears in the Hawaii Constitution. Opinions since annexation and statehood confirm the private nature of fish ponds in Hawaii. 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).

Imposition of public navigation servitude on privately constructed waterway. - Private "fast" lands and waters, such as fish ponds, when made navigable by improvements, or which could be made navigable, are subject to congressional regulation. Nevertheless, while Congress may provide for the improvement and regulation of navigation, and take necessary action to prevent interference or obstruction to navigation, it cannot impose a public navigation servitude upon such a privately constructed waterway without paying a reasonable compensation for 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 Navigable Marina, 2 U. Haw. L. Rev. 589 (1981).

§ 96. Proceedings for opening fisheries to 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 petition in a circuit court of the Territory of Hawaii, setting forth his claim to such fishing right, service of which petition shall be made upon the attorney-general, who shall conduct the case for the Territory, and such case shall be conducted as an ordinary action at law. That if such fishing right be established the attorney-general of the Territory of Hawaii may proceed, in such manner as may be provided by law for the condemnation of property for public use, to condemn such private right of fishing to the use of the citizens of the United States upon making just compensation, which compensation, when lawfully ascertained, shall be paid out of any money in the treasury of the Territory of Hawaii not otherwise appropriated.

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

CASE NOTES

Constitutionality. - The provisions of this section 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 § 95 of the Organic Act, of such rights becoming invalid in case of default, are reasonable and constitute due process. Bishop v. Mahiko, 35 Haw. 608 (1940).

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

Legislative intent. - Congress intended to do away with all fisheries in the sea waters of the Territory belonging to private individuals and not included in any fish pond or artificial inclosure and to provide for the condemnation of such of them as were vested rights. Kapiolani Estate, Ltd. v. Territory of Haw., 18 Haw. 460 (1907).

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

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

The provisions of this section constitute an enabling act, empowering the Territory of Hawaii, in its capacity as agent of the United States, to exercise, in conjunction with local law pertaining thereto, the power of eminent domain possessed by it, and pursuant thereto to acquire by condemnation all private fishing rights within the Territory, for the declared purpose of making all fisheries in the sea waters of the Territory free to the citizens of the United States. Bishop v. 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 the single statutory proceeding contemplated by § 95 of the Organic Act and this section. The action which the claimant of a fishing right was required to file was designed to settle, as between claimants and 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 section must be considered as a whole. The provisions of the section requiring establishment of private fishing rights and those authorizing their acquisition by condemnation are not independent or unrelated, but parts of a single statutory proceeding in eminent domain, the initial step of which was the establishment of private fisheries before an appropriate tribunal, followed by condemnation, making just compensation when lawfully ascertained. Bishop v. Mahiko, 35 Haw. 608 (1940).

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

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

Konohiki fishing rights are not only subjects of lease, but are in character legal rights of ancient origin, having survived the operation of § 95 of the Organic Act as established vested rights under proceedings provided by this section and recognized as such by § 187A-23. Coney v. Lihue Plantation Co., 39 Haw. 129 (1951).

Cited in Carter v. Territory, 14 Haw. 465 (1902); Territory of Haw. v. Matsubara, 19 Haw. 641 (1909); Territory of 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 Hawaii Law Review.
Note, Kaiser Aetna v. United States: Private Property Rights in a Navigable Marina, 2 U. Haw. L. Rev. 589 (1981).

§ 97. Quarantine.

The health laws of the government of Hawaii relating to the harbor of Honolulu and other harbors and inlets from the sea and to the internal control of the health of the islands shall remain 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, 58 Stat 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 registers on the twelfth day of August, eighteen hundred and ninety-eight, and which were owned bona fide by citizens of the United States, or the citizens of Hawaii, together with the following-named vessels claiming Hawaiian register, Star of France, Euterpe, Star of Russia, Falls of Clyde, and Willscott, shall be entitled to be registered as American vessels, with the benefits and privileges appertaining thereto, and the coasting trade between the islands aforesaid and any other portion of the United States, shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts.

Cross References. - See also § 88 of the Organic Act. As to authority to register Hawaiian vessels after annexation and before the Organic Act, see note to Joint Resolution of 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 domain heretofore known as Crown land is hereby declared to have been, on the twelfth day of August, eighteen hundred and ninety-eight, and prior thereto, the property of the Hawaiian government, and to be free and clear from any 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 alienation and 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, 441 F. 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 prior to the taking effect of the naturalization Act of June twenty-ninth, nineteen hundred 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 shall not be by this Act further validated or legalized.

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

Historical note. - Certificates of naturalization granted by the United States District Court for Hawaii between January 1, 1919, and July 1, 1922, were validated "insofar as failure of the record to contain final order under the hand of the court is concerned" by the Act of June 29, 1938, c. 822, 52 Stat. 1249.

CASE NOTES

Reference to naturalization laws in this section applies to the Nationality Act of 1940 and the Immigration and Nationality Act of 1952. Wong Kam Wo v. Dulles, 236 F.2d 622 (9th Cir. 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'd sub 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 when this Act takes effect may within one year thereafter obtain certificates of residence as required by "An Act to prohibit the coming of Chinese persons into the United States," approved May fifth, eighteen hundred and ninety-two, as amended by an Act approved November third, eighteen hundred 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 the expiration of said year shall not be deemed to be unlawfully in the United States if found therein without such certificates: Provided, however, That no Chinese laborer, whether he shall hold such certificate or not, shall be allowed to enter any State, Territory, or District of the United States from the Hawaiian Islands.

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

Editor's Note. - For cases decided under 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 note thereto, at RLH 1955, page 13.

§ 102.

That the laws of Hawaii relating to the establishment and conduct of any postal savings bank or institution are hereby abolished. And the Secretary of the Treasury in the execution of the agreement of the United States as expressed in an Act entitled "Joint resolution to provide for annexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundred and ninety-eight, shall pay the amounts on deposit in the Hawaiian Postal Savings Bank to the persons entitled thereto, according to their respective rights, and he shall make all needful orders, rules, and regulations for paying such persons and for notifying such persons to present their demands for payment. So much money as is necessary to pay said demands is hereby appropriated out of any money in the Treasury not otherwise appropriated, to be available on and after the first day of July, nineteen hundred, when such payments shall begin, and none of said demands shall bear interest after said date, and no deposit shall be made in said bank after said date. Said demands of such persons shall be certified to by the chief executive of Hawaii as being genuine and due to the persons presenting the same, and his certificate shall be sealed with the official seal of the Territory, and countersigned by its secretary, and shall be approved by the Secretary of the Interior, who shall draw his warrant for the amount due upon the Treasurer of the United States, and when the same are so paid no further liabilities shall exist in respect of the same against the governments of the United States or of Hawaii.

Cross References. - See the Act of 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 Postal Savings Bank that shall remain unpaid to the persons entitled thereto on the first day of July, nineteen hundred and one, and any assets of said bank shall be turned over by the government of Hawaii to the Treasurer of the United States, and the Secretary of the Treasury shall cause an account to be stated, as of said date, between such government of Hawaii and the United States in respect to said Hawaiian Postal Savings Bank.

Cross References. - See the Act of 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-five days from and after the date of the approval thereof, excepting only as to section fifty-two, relating to appropriations, which shall take effect upon such approval.

CASE NOTES

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

§ 105.

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

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

Historical note. - The Act of January 2, 1942, c. 646, 55 Stat. 881, authorized the employment of nationals of the United States for certain federal public work in Hawaii during the national emergency declared by the President on May 27, 1941.

§ 106.

The board of harbor commissioners of the Territory of Hawaii shall have and exercise all the powers and shall perform all the duties which may lawfully be exercised by or under the Territory of 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 controlled by the Territory, and the shipping using the same, and shall have the authority to use and permit and regulate the use of the wharves, piers, bulkheads, quays, and landings belonging to or controlled by the Territory for receiving or discharging passengers and for loading and landing merchandise, with a right to collect wharfage and demurrage thereon or therefor, and, subject to all applicable provisions of law, to fix and regulate from time to time rates for services rendered in mooring vessels, charges for the use of moorings belonging to or controlled by the Territory, rates or charges for the services of pilots, wharfage, or demurrage, rents or charges for warehouses or warehouse space, for office or office space, for storage of freight, goods, wares and merchandise, for storage space for the use of donkey engines, derricks, or other equipment belonging to the Territory, under the control of the board, and to make other charges, including toll or 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 service of Hawaii, clerks, wharfingers, and their assistants, pilots and pilot-boat crews, and such other officers and employees as may be necessary; to make rules and regulations pursuant to this section and not inconsistent with law; and generally shall have all powers necessary to carry out the provisions of this section. All officers and employees appointed pursuant to this section shall be subject to the Territorial laws of Hawaii relating to the civil service of Hawaii.

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

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

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

Historical note. - This board was created 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 July 21, 1919, Cong. Rec. v. 58, pt. 3, p. 2977, but not passed.

CASE NOTES

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

Liability of company obtaining filling material from ocean. - In a wrongful death action, it was alleged that a dredging company had failed to maintain suitable and efficacious means to prevent people from falling into a completed, excavated channel. The excavation was made in pursuance of a clause of a contract which authorized the company, under certain conditions, to obtain filling material from the ocean, but the right of the company to occupy a part of the ocean for the purpose of obtaining filling material could only be exercised by the permission of the board of harbor commissioners and federal engineers. Since when the purpose of such occupancy was accomplished the company not only was under no duty to erect barriers or provide other means of preventing people from falling into the excavation, but it was entirely without authority to 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 "Hawaiian Organic Act."

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

Historical note. - The act of July 9, 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. Title 1, comprising §§ 1-2, and Title 4, comprising §§ 401-402, are as follows:

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

"Section 2. That when used in this Act the term 'Hawaiian Organic Act' means the Act entitled 'An Act to provide a government for the Territory of Hawaii,' approved April 30, 1900, as amended.

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

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

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