Organic Act to Provide a Government for the Territory of Hawaii

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 Laws, Act 200, effective July 1, 1994, and repealed effective December 31, 1997.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).