Organic Act

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ORGANIC ACT.

An Act to Provide a Government for the Territory of Hawaii (Act of April 30, 1900, C 339, 31 Stat 141)

ARTICLE 1. General Provisions.

§ 1. Definitions.

That the phrase "the laws of Hawaii," as used in this Act without qualifying words, shall meanthe 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 theHawaiian Islands to the United States of America.

The constitution and statute laws of the Republic of Hawaii then in force, set forth in acompilation made by Sidney M. Ballou under the authority of the legislature, and published intwo 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 Actas "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 (2Supp. R.S. 1141), prepared and recommended by a commission appointed by the Presidentunder the Joint Resolution of Annexation of July 7, 1898, 30 Stat. 750 (2 Supp. R.S. 895). Theformal transfer of sovereignty under that resolution took place Aug. 12, 1898, and this OrganicAct, 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 betweenannexation 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 theChronological Note, RLH 1955, page 9.

The volumes mentioned in the second paragraph of this section did not contain all the lawsthen in force referred to in the first paragraph, nor were all the laws therein contained then inforce. The Civil Laws and Penal Laws were compilations, not enacted by the legislature. Theselaws 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 othersections 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); UnitedStates 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, 86S. 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 theInternal 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 HermesReef, Gambia Shoal and Dowsett and Maro Reef. The first nineteen were listed in theCommission 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 apart 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 notpart of the Territory in the Act of August 13, 1940, c. 662, 54 Stat. 784, extending jurisdictionof 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 exteriorboundaries of the Territory.

By the Act of April 19, 1930, the Hawaii National Park was removed from territorialurisdiction 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 (9thCir.), 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 atHonolulu, on the island of Oahu.

Historical note. - By this Act Hawaii acquired the status of an incorporated Territory andbecame 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, eighteenhundred 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 thereon 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 theTerritory 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, 54Stat. 1137, which in turn was repealed by the Act of June 27, 1952, 66 Stat. 166 (theMcCarran-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 theRepublic of Hawaii were citizens thereof. Between 1842 and 1892, 731 Chinese persons andthree 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 theOrganic 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 HawaiianIslands of British parents domiciled in this country is subject to the jurisdiction of this countryand is a Hawaiian subject or citizen. In re Macfarlane, 11 Haw. 166 (1897).

The framers of the Act of Congress providing a government for the Territory of Hawaiiapproved April 30, 1900, intended to refer to the geographical limits of the Hawaiian Islandsrather than to any political conditions existing therein; and that the Hawaiian and Americancitizenship 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 andambassadors, whose residence by a fiction of public law is regarded as the place of their owncountry. 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 amonarchy known as the Kingdom of Hawaii did not deprive them of their status as Americancitizens, it being proven that they were born in the Hawaiian Islands, sons of a domiciledChinese 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 theRepublic of Hawaii on August 12, 1898, were declared to be citizens of the United States andcitizens 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 thepersons so naturalized, nor were such children, while still nonresident, made citizens of theUnited 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, 1U.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.2d622 (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 havethe 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 theamendments thereto, and an act entitled "An act to prohibit the passage of local or special lawsin 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, c209, § 116(b), 47 Stat 205]

Historical note. - Federal liquor prohibition laws in effect in Hawaii were repealed by the Actof Mar. 26, 1934, c. 88, 48 Stat. 467. For application of other provisions of the federalConstitution and laws to Hawaii, see note to Joint Resolution of Annexation, RLH 1955, page13.

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 forceand effect within Hawaii as elsewhere in the United States, with certain exceptions. UnitedStates 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 notlocally applicable, saving only certain specified statutes. The special exceptions strengthen thegeneral application of this statutory rule. United States v. Thurston, 4 U.S.D.C. Haw. 1 (1911).

A territory must be considered in the same category as a state, and the Commerce Clause of thefederal 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; itinvolves a national policy, the benefits of which the United States has accorded Hawaii. Thissection is a law giving rise to original jurisdiction of a United States district court, and pursuantto it, the court may adjudicate plaintiff's claims for the equal protection of the law arising froma statute of the United States. Dyer v. Abe, 138 F. Supp. 220 (D. Haw. 1956), rev'd on othergrounds, 256 F.2d 728 (9th Cir. 1958).

The equal protection of the law is guaranteed by the Organic Act of Hawaii. It is thusunnecessary to decide whether the Fourteenth Amendment applies directly to a territory; itsprotection 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 aterritory, 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 andvalidity 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, 3U.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, 3U.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. (March1963, at 1).

§ 6. Laws of Hawaii.

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

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

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

CASE NOTES

Organic Act as fundamental law of territory. - The Organic Act passed by Congress for thegovernment of a territory, and under which the territorial government is organized, must betaken as the fundamental law of the territory; and all territorial legislative assemblies derivetheir 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, 29Haw. 7 (1926).

Unanimity of verdicts is essential under provisions of the Organic Act, but it may bewaived, 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 theConstitution 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 theUnited States, was significant of the complete recognition by the United States of the validityof such laws under the new status and of the agreement for their continuance until subject tofurther legislation relating to them either by Congress or by the Hawaiian legislature. UnitedStates 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 lawsof Congress from making a money contribution in connection with an election to politicaloffice was not applicable to a corporation chartered by the government of the Hawaiianmonarchy. 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 courtfor mitigation of sentence from district magistrates, and on exercise thereof the power of thecircuit court to mitigate an excessive sentence of the district magistrate, were fixed byHawaiian judicial precedent within the meaning of § 1-1, and therefore had the force of astatutory right and power under the laws of Hawaii within the meaning of this section. In reMarteles, 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); TheSchooner 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); Territoryof 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. (March1963, at 1).

§ 7.

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

Civil Laws: Sections two and three, Promulgation of laws; chapter five, Flag and seal; sectionsthirty to thirty-three, inclusive, Tenders for supplies; chapter seven, Minister of ForeignAffairs; chapter eight, Diplomatic and consular agents; section one hundred and thirty-four andone hundred and thirty-five, National museum; chapter twelve, Education of Hawaiian youthsabroad; 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 onehundred and sixty-eight, inclusive, one hundred and seventy-four and one hundred andseventy-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; chapterthirty-one, Agriculture and manufactures; chapter thirty-two, Ramie; chapter thirty-three, Taroflour; chapter thirty-four, Development of resources; chapter thirty-five, Agriculture; sectionfour 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, Railroadsubsidy; 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 entryand 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, firstsubdivision of section eleven hundred and forty-five, Jurisdiction; sections eleven hundred andseventy-three to eleven hundred and seventy-eight, inclusive, Translation of decisions; sectioneleven 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 tofifteen hundred and fourteen, inclusive, Maritime matters; chapter one hundred and two,

Naturalization; section sixteen hundred and seventy-eight, Habeas corpus; chapter one hundredand eight, Arrest of debtors; subdivisions six, seven, ten, twelve to fourteen of sectionseventeen hundred and thirty-six, Garnishment; sections seventeen hundred and fifty-five toseventeen hundred and fifty-eight, inclusive, Liens on vessels; chapter one hundred andsixteen, Bankruptcy, and sections eighteen hundred and twenty-eight to eighteen hundred andthirty-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 hundredand 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 hundredand one, Imports; section seven hundred and fifteen, Auction license; section seven hundredand forty-five, Commercial travelers; sections seven hundred and forty-eight to seven hundredand fifty-five, inclusive, Firearms; sections seven hundred and ninety-six to eight hundred andnine, inclusive, Coasting trade; sections eight hundred and eleven and eight hundred andtwelve, Peddling foreign goods; sections eight hundred and thirteen to eight hundred andfifteen, inclusive, Importation of livestock; section eight hundred and nineteen, Imports;sections eight hundred and eighty-six to nine hundred and six, inclusive, Quarantine; sectioneleven hundred and thirty-seven, Consuls and consular agents; chapter sixty-seven, Whaleships; 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 matterswithin the exclusive jurisdiction of the United States; sections thirteen hundred and forty-sevenand thirteen hundred and forty-eight, Fraudulent exportation; chapter seventy-eight, Mastersand servants; chapter ninety-three, Immigration; sections sixteen hundred and one, sixteenhundred 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, Exemptionsfrom 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 thegovernment of a territory, and under which the territorial government is organized, must betaken as the fundamental law of the territory; and all territorial legislative assemblies derivetheir 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 fromgoing away from the Territory or to compel him to give security for the payment of the

udgment that might be recovered. The execution of the writ would subject the defendant toimprisonment 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.

§ 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 notrepealed 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 thecontext 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 tothe 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 theUnited 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 theRepublic 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 criminaland penal proceedings then pending in the courts of the Republic of Hawaii shall be prosecutedto final judgment and execution in the name of the Territory of Hawaii; all such proceedings, allactions at law, suits in equity, and other proceedings then pending in the courts of the Republicof Hawaii shall be carried on to final judgment and execution in the corresponding courts of theTerritory 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, Thatno suit or proceedings shall be maintained for the specific performance of any contractheretofore or hereafter entered into for personal labor or service, nor shall any remedy exist or beenforced for breach of any such contract, except in a civil suit or proceeding instituted solely torecover damages for such breach: Provided further, That the provisions of this section shall notmodify 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 whichpersons 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 theUnited 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, RLH1955, page 13.

CASE NOTES

Writ of ne exeat was available, in an action of assumpsit, to prevent a defendant from goingaway from the Territory or to compel him to give security for the payment of the judgment thatmight be recovered. The execution of the writ would subject the defendant to imprisonment fordebt, 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 anadministrator to perform his trusts and to account in all respects for the discharge of his officialduties is the same as the compulsory power of equity to enforce its decrees and is not within theprohibition against imprisonment for debt. In re Estate of Ahi, 19 Haw. 232 (1908) (decidedunder prior law).

Pending admiralty case heard in Hawaiian court. - Appeal in admiralty was one of the otherproceedings 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 thoughadmiralty cases brought after the effective date of the Organic Act would have to be brought inthe federal district court, subject to the right of appeal to the Circuit Court of Appeals for theNinth Circuit. Ex parte Wilder's S.S. Co., 183 U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902).

This section had no application to stipulation in contract wherein defendant agreed not toexhibit or deal in motion picture films in Hawaii. Consolidated Amusement Co. v. Hughes, 22Haw. 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 "TheTerritory 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 inwhich similar jurisdiction is exercised by them and with the machinery at their command. In reAbreu, 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 somemodifications, 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 asotherwise 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, thesettlement 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 andin 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 mayin 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, authorizingthe legislature of the Territory to alter or amend the election laws of the Territory, did notauthorize the legislature to provide by statute for the election of members of the legislature at atime 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 ownmembers.

CASE NOTES

Effect of failure to reapportion membership on subsequently enacted statute. - The questionof whether the failure of the legislature of the Territory, at its first regular session, after thecensus 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-recognizedindependence of the legislative branch of the government, forbade interference by the judiciarywith 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 orelected to any office of the Territory of Hawaii: Provided, That nothing in this Act shall preventa 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 suchoffices 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 Statesor of the Territory of Hawaii shall be eligible to election to the legislature, or to hold the positionof 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 reNotaries Pub. & Similar Officers to Sit in Legislature, 8 Haw. 561 (1887).

"Office of the territory" defined. - In its known and ordinary significance, the phrase "office of

the territory of Hawaii" does not include offices purely local or municipal, but includes only suchoffices 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).

18.

No idiot or insane person, and no person who shall be expelled from the legislature for giving orreceiving bribes or being accessory thereto, and no person who, in due course of law, shall havebeen convicted of any criminal offense punishable by imprisonment, whether with or withouthard labor, for a term exceeding one year, whether with or without fine, shall register to vote orshall 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 theConstitution 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. Itmade this obligatory only upon every member of the legislature and all officers of thegovernment 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 therules 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 themembers present, be entered on the journal.

22. Quorum.

That a majority of the number of members to which each house is entitled shall constitute aquorum of such house for the conduct of ordinary business, of which quorum a majority voteshall 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 attendanceof 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 countthe 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 personnot a member of either house who shall be guilty of disrespect of such house by any disorderly orcontemptuous behavior in its presence or that of any committee thereof; or who shall, on accountof the exercise of any legislative function, threaten harm to the body or estate of any of themembers 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 anyperson arrested by order of such house.

But the person charged with the offense shall be informed, in writing, of the charge made againsthim, 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 orentitled to draw their salaries from the clerk of the senate upon a warrant of the auditor, thegarnishment 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 salariesof legislators, judges and governors, if paid by the State, should be subject to attachment for theirdebts. 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 thedisrespect 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 itscommittee 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 mayadopt by concurrent resolution a single rule which is applicable to both the house and to thesenate, requiring the registration or revealing of interest by lobbyists prior to any appearancebefore either the house or senate or a committee of the house or senate. The sanctions againstpersons who fail to comply with such a rule are limited to appearances before the house andsenate and committees thereof while in session. Neither house may punish an individual forfailure 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 ruleadopted by a concurrent resolution, such restrictions must be enacted by either an act or a jointresolution having the force and effect of law in accordance with sections 44 through 48 of theOrganic 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 fromgeneral sessions at the rate of 20 cents a mile each way, the sum of $1,000 for each generalsession, payable in three equal installments, on and after the first, thirtieth, and fiftieth days of such session, to be appropriated by Congress from any moneys in the Treasury not otherwiseappropriated, 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 membersfor general sessions shall constitute the only sums to be appropriated by the Congress forlegislative expenses. Members shall receive from the Treasury of the Territory $500 ascompensation 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 fromthe Treasury of the Territory for compensation and mileage to such members for budget sessionsand for the payment of additional compensation to such members for general sessions andspecial 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 legislativeexpenses contained the proviso that legislators should not receive compensation or mileage forany 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, bycensure, 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 wordsuttered 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 thepeace, 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 andreturning 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 qualifiedvoters of the respective senatorial districts for a term of four years beginning with their electionand ending on the day of the second general election after their election: Provided, however,That (1) senators elected at the general election 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 electedfrom the new senatorial district in which they resided at the time of their election; and (2) that atthe first session of the legislature subsequent to the general election of 1958, the legislature shallso 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 necessaryassignments 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 andrepresentatives on the basis of the number of citizens as determined by the census.

CASE NOTES


31. Vacancies.

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

32. Senatorial Districts.

For the purpose of representation in the senate, the Territory is divided into the followingsenatorial 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 NuuanuStreet and Pali Road and the upper ridge of the Koolau Range from the Nuuanu Pali to MakapuuPoint 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 OrganicAct.

CASE NOTES


34. Qualifications of senators.

That in order to be eligible to election as a senator a person shall- Be a citizen of the UnitedStates; Have attained the age of thirty years; Have resided in the Hawaiian Islands not less thanthree 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).


THE HOUSE OF REPRESENTATIVES.

35. House of Representatives; Number.



The house of representatives shall be composed of fifty-one members, who shall be elected bythe 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 beuntil 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 befilled 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 thefollowing 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 andHamakua;

Fourth representative district: That portion of the island of Hawaii known as Kau and SouthKona and that portion of North Kona, for convenience herein referred to as Keauhou, moreparticularly described as follows: (1) from a point at the seashore between the lands of Holauloa1 and 2 and Puapuaa 2 running northeasterly along the boundary of Holauloa 1 and 2 to PuuLaalaau; (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 boundarybetween 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 SouthKona District; (5) northerly and westerly along the boundary between North and South KonaDistricts 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 thatportion 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 andKoolauloa;

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 hereinreferred to as Kalihi, more particularly described as follows: (1) from the intersection of Kalihiand Auiki Streets running westerly along Auiki Street to Mokauea Street; (2) southwesterlyalong Mokauea Street extension extended to a point on the outer edge of the reef; (3) westerlyalong the outer edge of the reef to a point on the Moanalua-Halawa boundary; (4) northerly andnortheasterly 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 hereinreferred 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 landsof Kalihi, Kapalama and Nuuanu; (2) northeasterly along the top of said ridge to a point on theKoolau Range called Puu Lanihuli; (3) easterly along the top of said range to Pali Road at theNuuanu Pali; (4) southwesterly along Pali Road to Nuuanu Avenue and southwesterly alongNuuanu Avenue to School Street; (5) northwesterly along School Street to the centerline of theKapalama 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 hereinreferred to as Kapalama, more particularly described as follows: (1) from the junction of theHonolulu Harbor Channel and the reef running westerly along the outer edge of the reef toMokauea Street extension extended; (2) northeasterly along Mokauea Street extension extendedto 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 toNuuanu Avenue; (10) southwesterly along Nuuanu Avenue to the sea, and (11) southwesterlyalong 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 hereinreferred to as Pauoa, more particularly described as follows: (1) from the junction of theHonolulu Harbor Channel and the outer edge of the reef running northeasterly along the middleof 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 alongPali Road to the top of Koolau Range at the Nuuanu Pali; (3) easterly and southerly along the topof the Koolau Range to a point called Puu Konahuanui; (4) southwesterly along the top of theridge between the lands of Nuuanu, Pauoa and Manoa to a mountain peak called Puu Ohia orTantalus; (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 alongLewalani Drive and Piikoi Street to Wilder Avenue; (7) easterly along Wilder Avenue toPunahou Street; (8) southerly along Punahou Street to King Street; (9) westerly along KingStreet to Kalakaua Avenue; (10) southerly along Kalakaua Avenue to the center line of the AlaWai Canal; (11) westerly along said canal and along the line of said canal extended to the outeredge 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 hereinreferred to as Manoa and Waikiki, more particularly described as follows: (1) from theintersection of Kalakaua Avenue and the center line of the Ala Wai Canal running northerlyalong 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 PiikoiStreet; (5) northerly along Piikoi Street to Lewalani Drive; (6) northerly along Lewalani Drive toNehoa Street; (7) northeasterly along the top of the ridge between the lands of Makiki andKalawahine 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 calledPuu Konahuanui; (9) southeasterly along the top of said range to a place called MountainOlympus; (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 plan464) to the southerly boundary of said tract one hundred feet southeasterly from AlencastreStreet; (13) southwesterly parallel to and one hundred feet from Alencastre Street and SaintLouis Drive to Waialae Avenue; (14) westerly along Waialae Avenue to Kapahulu Avenueextended; (15) southerly across Waialae Avenue and along Kapahulu Avenue to KalakauaAvenue; (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 hereinreferred to as Kaimuki and Kapahulu, more particularly described as follows: (1) from a point atthe seacoast at a place called Black Point running westerly along the seacoast to KapahuluAvenue extended to the sea; (2) easterly across Kalakaua Avenue and easterly and northerlyalong Kapahulu Avenue to Waialae Avenue; (3) easterly along Waialae Avenue to a point onehundred feet easterly of Saint Louis Drive; (4) northeasterly across Waialae Avenue then parallelto and one hundred feet from Saint Louis Drive and Alencastre Street to the southerly boundaryof Saint Louis Heights tract, series 2 (file plan numbered 464); (5) northeasterly along thesoutheasterly boundary of said tract to the forest reserve boundary; (6) northeasterly along thetop 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 ThirteenthAvenue and Ocean View Drive to Kilauea Avenue; (14) westerly along Kilauea Avenue toMakapuu 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 otherrepresentative district on the island of Oahu, together with all other islands not included in anyother representative district;

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

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

CASE NOTES


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 theOrganic Act.

CASE NOTES


40. Qualifications of representatives.

That in order to be eligible to be a member of the house of representatives a person shall, at thetime 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 forrepresentatives 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, wasnot 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 regularsessions may, if so provided by act of the legislature be held in even number years. All suchsessions 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 evennumber 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 proposedcapital expenditures, (3) revenue bills necessary therefor, (4) bills calling elections, (5) proposedconstitutional amendments, (6) bills to provide for the expenses of such session, and (7) mattersrelating 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, withoutthe 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 thanthirty days. Sundays and holidays shall be excluded in computing the number of days in anysession.

(b) The Governor may convene the legislature, or the Senate alone, in special session. Allsessions shall be held at the capital of the Territory. In case the capital shall be unsafe, theGovernor 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.


Rule requiring registration of interest by lobbyists in both houses. - The legislature mayadopt by concurrent resolution a single rule which is applicable to both the house and to thesenate, requiring the registration or revealing of interest by lobbyists prior to any appearancebefore either the house or senate or a committee of the house or senate. The sanctions againstpersons who fail to comply with such a rule are limited to appearances before the house andsenate and committees thereof while in session. Neither house may punish an individual forfailure 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 ruleadopted by a concurrent resolution, such restrictions must be enacted by either an act or a jointresolution having the force and effect of law in accordance with §§ 44 through 48 of the OrganicAct. Op. Att'y Gen. No. 59-23 (1959).

45. Title of laws.

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

CASE NOTES

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

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

But it should be liberally construed, and an act of the legislature should not be held void on theground 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 thisprovision. 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 isin 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 anddistinct 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 asAmended by Act 151 of the Laws of 1909, Relating to the Issuance of Licenses," where the bodyof the act contained a proviso relating to the payment of personal and property taxes, wasmisleading insofar as the matter contained in said proviso was concerned, the same not beingrelated 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 havea natural connection, are fairly well embraced in one subject, though somewhat general, and areexpressed in the title. Dole v. Cooper, 15 Haw. 297 (1903).

Act vitiated by void portion. - So much of Act 31, Laws of 1903, known as the County Act, asprovided 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, whichshall 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); Costaex rel. Hanvey v. Flintkote Co., 42 Haw. 518 (1958); Von Holt v. Izumo Taisha Kyo Mission, 42Haw. 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).


Concurrent resolution. - The legislature may adopt by concurrent resolution a single rule whichis applicable to both the house and to the senate, requiring the registration or revealing of interestby lobbyists prior to any appearance before either the house or senate or a committee of thehouse or senate. The sanctions against persons who fail to comply with such a rule are limited toappearances before the house and senate and committees thereof while in session. Neither housemay punish an individual for failure to comply with the rule while appearing before the otherhouse 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 beenacted by either an act or a joint resolution having the force and effect of law in accordancewith §§ 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 eachhouse, 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 byreference, 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, 15Haw. 365 (1904); Smithies v. Conkling, 20 Haw. 600 (1911).


Concurrent resolution. - The legislature may adopt by concurrent resolution a single rule whichis applicable to both the house and to the senate, requiring the registration or revealing of interestby lobbyists prior to any appearance before either the house or senate or a committee of thehouse or senate. The sanctions against persons who fail to comply with such a rule are limited toappearances 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 otherhouse 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 beenacted by either an act or a joint resolution having the force and effect of law in accordancewith §§ 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

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 theretoshall have originated, shall immediately be certified by the presiding officer and clerk and sent tothe other house for consideration.


Concurrent resolution. - The legislature may adopt by concurrent resolution a single rule whichis applicable to both the house and to the senate, requiring the registration or revealing of interestby lobbyists prior to any appearance before either the house or senate or a committee of thehouse or senate. The sanctions against persons who fail to comply with such a rule are limited toappearances 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 otherhouse 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 beenacted by either an act or a joint resolution having the force and effect of law in accordancewith §§ 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

48. Signing bills.

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

CASE NOTES

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


Concurrent resolution. - The legislature may adopt by concurrent resolution a single rule whichis applicable to both the house and to the senate, requiring the registration or revealing of interestby lobbyists prior to any appearance before either the house or senate or a committee of thehouse or senate. The sanctions against persons who fail to comply with such a rule are limited toappearances before the house and senate and committees thereof while in session. Neither housemay punish an individual for failure to comply with the rule while appearing before the otherhouse 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 beenacted by either an act or a joint resolution having the force and effect of law in accordancewith §§ 44 through 48 of the Organic Act. Op. Att'y Gen. No. 59-23 (1959).

VETO.

49. Veto of Governor.

That every bill which shall have passed the legislature shall be certified by the presiding officersand clerks of both houses, and shall thereupon be presented to the governor. If he approves it, heshall sign it, and it shall become a law. If the governor does not approve such bill, he may returnit, with his objections, to the legislature. He may veto any specific item or items in any bill whichappropriates 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 shallenter the same at large upon its journal and proceed to reconsider such bill, or part of a bill, andagain 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 itshall become a law without his signature, unless the legislature adjourns sine die prior to theexpiration of such ten days.

If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shallhave been presented to him, the same shall be a law in like manner as if he had signed it, unlessthe 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 draftedthis act, from the Hawaiian Const. of 1894 (§ 69), and the second paragraph was added byCongress, from the federal Constitution, Art. 1, § 7. The latter giving twelve days, includingSundays, in which to return a bill, probably controls the former, and apparently this wasrecognized by the legislature in the case of L. 1911, c. 143. In several instances bills have beensigned by the governor after the adjournment of the legislature, but within ten days after theirpassage.

CASE NOTES

Pocket veto. - A pocket veto occurs in the following situation: (a) the bill is passed by thelegislature at the regular session; (b) it is delivered to the governor after the legislature adjournsthe 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) onthe 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 fromreturning the bill with his objections to the session that passed it. Hawaiian Airlines v. PublicUtils. 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).


National guard facilities. - As to the propriety of participation by Hawaii in a joint utilizationproject with the federal government for use of national guard facilities and legislative authorityto 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 appropriationsfor the succeeding biennial period or, if provision be made in accordance with section 41 of thisAct 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 thenecessary current expenses of carrying on the government and meeting its legal obligations asthe 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 thelegislature shall have acted the treasurer may, with the advice of the governor, make suchpayments, for which purpose the sums appropriated in the last appropriation bill shall be deemedto have been reappropriated. And all legislative and other appropriations made prior to the datewhen 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 atan 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 toprovide for the necessary expenses of the government for the succeeding biennial period, and inits extra session immediately afterwards it passed complete appropriation bills for the first sixmonths of the biennial period, and bills providing for a portion of the necessary expenses of thelast 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 whichturned out to be void, the expenses so unprovided for could be paid out of the last appropriationbills by the treasurer with the advice of the governor under this section. "The last appropriationbills," 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 notinconsistent with the Constitution and laws of the United States locally applicable. Thelegislature shall not grant to any corporation, association, or individual any special or exclusiveprivilege, 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 bodiescorporate for manufacturing, agriculture, and other industrial pursuits, and for conducting thebusiness 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 theconstruction and operation of railroads, wagon roads, vessels, and irrigating ditches, and thecolonization and improvement of lands in connection therewith, or for colleges, seminaries,churches, libraries, or any other benevolent, charitable, or scientific association. No divorce shallbe granted by the legislature, nor shall any divorce be granted by the courts of the Territoryunless the applicant therefor shall have resided in the Territory for two years next preceding theapplication, but this provision shall not affect any action pending when this Act takes effect; norshall 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 thegovernment; nor shall the government of the Territory of Hawaii, or any political or municipalcorporation or subdivision of the Territory, make any subscription to the capital stock of anyincorporated company, or in any manner lend its credit for the use thereof; nor shall any debt beauthorized to be contracted by or on behalf of the Territory, or any political or municipalcorporation or subdivision thereof, except to pay the interest upon the existing indebtedness, tosuppress insurrection, or to provide for the common defense, except that in addition to anyindebtedness created for such purposes the legislature may authorize loans by the Territory, orany 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 totalindebtedness of the Territory shall not at any time be extended beyond 10 per centum of theassessed value of the property in the Territory and the total indebtedness of any such subdivisionshall not at any time be extended beyond 5 per centum of the assessed value of property in thesubdivision, as shown by the then latest assessments for taxation, whether such assessments aremade in either case by the Territory or subdivision, but nothing in this Act shall prevent therefunding of any indebtedness at any time; nor shall any such loan be made upon the credit of thepublic 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 theissue thereof; nor shall any issue of bonds or other instruments of any such indebtedness be madeafter July 1, 1926, other than such bonds or other instruments of indebtedness in serial formmaturing in substantially equal annual instalments, the first instalment to mature not later thanfive 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 incurreduntil approved by the President of the United States: Provided, That the legislature may bygeneral act provide for the condemnation of property for public uses, including the condemnationof 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 shallreapportion the members of the house of representatives in the following manner: The totalnumber of representatives shall first be reapportioned among four basic areas; namely, (1) theisland of Hawaii, (2) the islands of Maui, Molokai, Lanai and Kahoolawe, (3) the island of Oahuand all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, on thebasis 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 basicarea 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 theone or more representative districts within each basic area on the basis of the number of votersregistered at the last preceding general election within each of such representative districts andcomputed by the method known as the method of equal proportions no representative district toreceive less than one member. Upon any reapportionment, should the total number of votersregistered in any representative district be less than one-half of the quotient obtained by dividingthe total number of voters registered in the Territory by the total number of members to whichthe house is entitled, then, as part of such reapportionment, the basic area within which suchrepresentative district lies shall be redistricted by the governor in such manner that the totalnumber 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 thenext five succeeding legislatures.

Original jurisdiction is hereby vested in the supreme court of the Territory to be exercised on theapplication of any registered voter, made within thirty days following the date specified above, tocompel, by mandamus or otherwise, the governor to perform the above duty; and made withinthirty days following the date of such proclamation, to compel, by mandamus or otherwise, thecorrection 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 hasauthorized 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 theOrganic Act, and were made inapplicable expressly by that amendment. Pursuant to section73(c) of the Organic Act, certain land laws are not subject to repeal or amendment by thelegislature without the approval of Congress.

By the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdictionexcept 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 toHawaii by § 3 of the Act of Nov. 23, 1921, c. 134, 42 Stat. 223. All federal liquor prohibitionlaws 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, seethe 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 territorialgovernment, see § 73 of the Organic Act. For franchises granted by the territorial legislature andapproved, with amendments, by Congress, see note 3 in Appendix of RLH 1945, page 1676, andlist 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 thegovernment of the Territory is the fundamental law of the Territory of Hawaii; and by theprovisions 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, locallyapplicable. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

Legislative authority of Congress. - Congress has plenary legislative authority over the peopleand 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 theUnited 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 theTerritory of Hawaii which conflicted with an executive agreement made by the Presidentviolated this section. Territory v. Ho, 41 Haw. 565 (1957).

Laws passed in exercise of police powers. - Laws passed by the legislature in the exercise of itspolice powers are "rightful subjects of legislation" within the meaning of that term as employedin 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 thedate of its approval by the President of the United States, was not intended to require thePresident's approval in order that the act should become law, and therefore was not an attempteddelegation of law-making power, but was intended merely to fix the time when the law would gointo 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 voidunder § 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 notincluded 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 Territoryshould be free from police regulation or taken out of the taxing power of the Territory, the objectbeing to do away with exclusive private rights of fishery in those waters. Nor was the act void as

discriminatory class legislation or for unreasonably classifying boats required to be licensed orfor 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 UnitedStates 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 alegitimate exercise of the police power, and within the grant of legislative power contained inthis 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 theprovisions of the Organic Act, but it may be waived, and it is waived by a request for aninstruction, which is given, that a verdict may be rendered by nine jurors. Pringle v. HiloMercantile Co., 13 Haw. 705 (1901).

Workers' compensation. - Provision for compensation to injured workers or their dependentsoccasioned by an accident arising out of or in the scope of the workers' employment is a rightfulsubject 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 orNavy, 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 quartersfurnished by the government on a military or naval station; the fact that he cannot stay in the newhome, if called away to perform his duties, does not prevent his forming the animus manendi andacquiring a domicile there. West v. West, 35 Haw. 461 (1940).

Garnishment of public officials. - As state senators are accustomed or entitled to draw theirsalaries from the clerk of the senate upon a warrant of the auditor, the garnishment statuteauthorizes garnishing each of those officials. The statute is not unconstitutional on the groundthat it is against public policy that a percentage of the salaries of legislators, judges andgovernors, if paid by the Territory, should be subject to attachment for their debts. See See Kongv. 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, 24Haw. 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. exrel. 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); Fasiv. 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 thelegislative power shall extend to "all rightful subjects of legislation" includes full andcomprehensive power to legislate in the matter of taxation. W. C. Peacock & Co. v. Pratt, 121 F.772 (9th Cir. 1903).

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

The term "all rightful subjects of legislation," as employed in this section, is all-inclusive, and no

implication arises from the absence of a specific grant of the legislative power to tax. Borthwick v. Veatch, 38 Haw. 188 (1948).

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

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

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

Power to tax for local purposes. - A territorial legislature has all the powers of a statelegislature, except as limited by the Organic Act of the Territory, the Constitution of the United



States and the Acts of Congress, and these powers include the power to tax for local purposes,which is inherent in all governments. Peacock v. Wright, 1 U.S.D.C. Haw. 294 (1902).

Collection of taxes not enjoined if adequate remedy at law exists. - The legislature of Hawaiihas the general power to legislate upon all questions of taxation in relation to providing a local

system of revenue to carry on the government of the Territory of Hawaii, the only limitationbeing that such legislation shall not be inconsistent with the Constitution and laws of the UnitedStates, locally applicable, and where said legislature has enacted a local income tax law, theUnited States District Court will not interfere by injunction to restrain the collection of taxesassessed under the law, where complainants have an adequate remedy at law. Peacock v. Wright,1 U.S.D.C. Haw. 294 (1902).

III. APPROPRIATIONS.

Appropriation for payment of claim based on moral obligation. - It is within the power of thelegislature to appropriate money for the payment of a claim which, while not cognizable or

enforceable in a court of law, is founded upon moral and honorable obligations and uponprinciples of right and justice. In re Mott-Smith, 29 Haw. 343 (1926).

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

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

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

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

Appropriation for refund of purchase price of public lands sold at fair price was improper. - The appropriation of a sum of money by the legislature for the avowed purpose of refunding aportion of the purchase price of public lands which had been sold at a price fairly fixed by theexecutive department having authority to fix it was clearly an attempt by the legislature to



repudiate, overturn and set aside the lawful act of a coordinate branch of the government and tosubstitute its judgment for that of the department upon which the law cast the duty of exercisingits judgment. The act constituted an attempt to divert public funds to private use without anymoral or equitable obligation or other consideration of public policy to support it. It was nottherefore a rightful subject of legislation. In re Tavares, 26 Haw. 101 (1921).

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

IV. DIVORCE.

Residence requirements for divorce suit held mandatory and jurisdictional. - The provisionsof the Organic Act and the Hawaii statute as to the residence of the plaintiff preceding the

commencement of a suit for divorce were mandatory and jurisdictional, and a judge was withoutauthority to grant a decree in the absence of proof of domicile for the necessary length of time.Zumwalt v. Zumwalt, 23 Haw. 376 (1916).

V. LOTTERIES.

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

VI. BONDS.

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

Bonds financed by assessments on benefited property did not create municipalindebtedness. - When the City and County of Honolulu issued bonds for street improvements,the cost of which improvements was to be met by assessments against the property specially

benefited, such bonds did not create a municipal indebtedness within the meaning of this sectionand therefore did not require the approval of the President of the United States, nor was thevalidity of the bonds in any way affected by the provisions of the act limiting the amount of indebtedness which the City and County of Honolulu could incur. E.E. Black, Ltd. v. Conkling,33 Haw. 731 (1936).

Highway bonds payable from special fund did not conflict with section. - Statute authorizingthe issuance of interest-bearing improvement bonds by a city and county to defray the cost of



highway improvements did not conflict with this section, where such bonds were not a chargeagainst or payable out of the general funds of the municipality, but only a special fund composedof moneys collected on account of assessments made for the improvement for which they wereissued. Von Damm v. Conkling, 23 Haw. 487 (1916).

VII. EMINENT DOMAIN.

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

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

VIII. REAPPORTIONMENT.

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

Validity of act passed after failure to reapportion membership. - Whether the failure of thelegislature of the Territory of Hawaii, at its first regular session after the census enumeration wasascertained, to reapportion the membership in the senate and house of representatives, as

required by this section, rendered invalid a statute enacted by the legislature subsequent to suchrequirement becoming effective was a political question and not justiciable. Each house of thelegislature under the Organic Act was the judge of the elections, returns and qualifications of itsown members, which power, coupled with the well-recognized independence of the legislativebranch of the government, forbade interference by the judiciary with legislative expediency.Territory v. Tam, 36 Haw. 32 (1942).


"Benevolent" construed. - The term "benevolent," as found in this section, contemplated thatthe "benevolent" purpose be one of general welfare and of direct or indirect benefit to the public,

rather than restricted to members of a select group. Op. Att'y Gen. No. 59-165 (1959).

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



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

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

TOWN, CITY, AND COUNTY GOVERNMENT.

56.

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

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

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

CASE NOTES

This section does not require officials of municipalities be elected solely by the people of

each municipality or to be appointed solely by the mayor or the supervisors or other municipalofficers. McKenzie v. Wilson, 31 Haw. 216 (1930).

Congress did not intend § 16 of the Organic Act to prescribe who should not be appointed

or elected to any office purely municipal, but by this section left that to the territorial legislature.Hollinger v. Kumalae, 25 Haw. 669 (1920).

Act's general power to create city municipalities not limited by federal act of 1886. - Afederal act of 1886, prohibiting territories then and thereafter to be organized from incorporating

cities by a special law, did not limit the general power subsequently given by the Organic Act tocreate city municipalities. Emmeluth v. Board of Supvrs., 19 Haw. 171 (1908).

Authority of city of Honolulu to determine payment of moral obligation implied by this

section. - Authority of the legislature to delegate to the city of Honolulu its power to investigateand determine moral obligations of that city for purposes of payment thereof is implied from thelanguage of this section, which authorizes the territorial legislature to provide for the governmentof, as well as to create, counties and towns and city municipalities. Such delegation by the



legislature to the legislative body of a political subdivision of the Territory is one within thesame branch of government, comparable to the delegation of legislative power by Congress tothe territorial legislature. It therefore does not come under the prohibition of the general doctrineagainst delegation of legislative powers to other branches of government as a constitutionallimitation upon a legislature. James W. Glover, Ltd. v. Fong, 39 Haw. 308, appeal dismissed,

197 F.2d 710 (9th Cir. 1952).

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

Act of legislature of Territory conferring authority upon County of Hawaii to pass

ordinances did not expressly provide that parent government would be bound thereby. HiloMeat Co. v. Antone, 23 Haw. 675 (1917).

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

ELECTIONS.

57. Exemptions of electors on election day.

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

58.

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

59. Method of voting for representatives.

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

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

60. Qualifications of voters for representatives.

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



First. Be a citizen of the United States.

Second. Have resided in the Territory not less than one year preceding and in the representativedistrict in which he offers to register not less than three months immediately preceding the timeat which he offers to register.

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

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

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

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

Cross References. - See also, as to qualifications of voters, §§ 18, 62, and 63 of the Organic Act.

As to citizenship, see §§ 4, and 100. As to registration, see § 64.

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, wasnot void as being in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Provisions of Organic Act on qualifications for electors as effective as if expressed in

municipal act. - Sections 42 and 70 of the act incorporating the City and County of Honolulu(since repealed) were in conflict with the provisions of the Organic Act relative to thequalifications of electors and absolutely void. But the entire act was not thereby made

inoperative or invalid, the provisions of the Organic Act on the subject of qualifications forelectors being as effective as if especially expressed in the municipal act, particularly in view of the fact that in former § 40 they were declared to be applicable. Emmeluth v. Board of Supvrs.,19 Haw. 171 (1908).

One who has no place of abode except on steamer engaged in inter-island trade was not a

resident of a particular precinct within the meaning of the election laws, although the steamerwhen at Honolulu docked at a wharf in such precinct and Honolulu was her home port. In reIrving, 13 Haw. 22 (1900).

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

Smith, 15 Haw. 265 (1903).


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



LEGAL PERIODICALS

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

61. Method of voting for senators.

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

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

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

That in order to be qualified to vote for senators and for voting in all other elections in the

Territory of Hawaii a person must possess all the qualifications and be subject to all theconditions required by this Act of voters for representatives.

CASE NOTES

Former § 31 of the Organic Act, relating to filing of nomination papers by candidates, wasnot void as being in conflict with this section. Chandler v. Mott-Smith, 19 Haw. 225 (1908).

Provisions of Organic Act on qualifications for electors as effective as if expressed in

municipal act. - Sections 42 and 70 of the act incorporating the City and County of Honolulu(since repealed) were in conflict with the provisions of the Organic Act relative to the

qualifications of electors and absolutely void. But the entire act was not thereby madeinoperative or invalid, the provisions of the Organic Act on the subject of qualifications forelectors being as effective as if especially expressed in the municipal act, particularly in view of the fact that in former § 40 they were declared to be applicable. Emmeluth v. Board of Supvrs.,19 Haw. 171 (1908).

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


Alien who became a naturalized citizen a few days prior to a coming election held not

eligible to vote in said election, since the person in question was not able to register prior to theclosing of the county register. However, upon his registration, he would be entitled to vote infuture state and local elections. Op. Att'y Gen. No. 59-50 (1959).

63.

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




Serviceman merely stationed in Hawaii not resident. - The intention of this section is clearlyto provide that no person attached to the armed forces of the United States becomes a resident of Hawaii merely by reason of being in Hawaii by virtue of being stationed here as a serviceman.

Op. Att'y Gen. No. 60-119 (1960).

64.

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

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

hundred.

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

In section thirty-one strike out "the first day of April and the thirtieth day of June, in the yeareighteen hundred and ninety-seven," and insert in lieu thereof "the last day of August and the

tenth day of October, in the year nineteen hundred."

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

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

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

In sections fifty-three, fifty-four, fifty-six, fifty-seven, fifty-nine, sixty, seventy-one, seventy-five, eighty-six, ninety-two, ninety-three, ninety-four, ninety-five, one hundred and eleven, one

hundred and twelve and one hundred and thirteen strike out the words "minister" and "ministerof the interior" wherever they occur and insert in lieu thereof the words "secretary of theTerritory."

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



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

Amend section sixty-seven so that it will read: "At least forty days before any election the

governor shall issue an election proclamation and transmit copies of the same to the severalboards of inspectors throughout the Territory, or where such election is to be held."

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

In section one hundred and fifteen strike out the words "minister" and "minister of the interior"and insert in lieu thereof "treasurer," and strike out all after the word "refreshments": Provided,however, That for the holding of a special election before the first general election the governor

may prescribe the time during which the boards of registration shall meet and the registration bemade.

CASE NOTES

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

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

(1914).

65.

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

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


Legislature has no power to redistrict or reapportion legislature. - By virtue of Public Law895, 84th Congress, 2d Session, 70 Stat. 903 (the Reapportionment Act), expressly amending §55 and impliedly repealing this section of the Organic Act, the legislature had no power toredistrict or reapportion the legislature; such powers were vested solely in the governor, whocould exercise his authority only if the conditions set forth in § 55 as amended were found toexist. Op. Att'y Gen. No. 59-6 (1959).



ARTICLE 3. The Executive.

66. The executive power.

That the executive power of the government of the Territory of Hawaii shall be vested in a

governor, who shall be appointed by the President, by and with the advice and consent of theSenate of the United States, and shall hold office for four years and until his successor shall beappointed and qualified, unless sooner removed by the President. He shall be not less than thirty-five years of age; shall be a citizen of the Territory of Hawaii; shall have resided therein for atleast three years next preceding his appointment; shall be commander in chief of the militiathereof, and may grant pardons or reprieves for offenses against the laws of said Territory andreprieves for offenses against the laws of the United States until the decision of the President ismade known thereon.

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

CASE NOTES

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

Supreme court of Hawaii was an intermediate court of appeal in a case where the appellant

had the right of appeal from an adverse decision by the supreme court of the United StatesCircuit Court of Appeals for the Ninth Circuit and a decision by the supreme court on a former

appeal of the cause did not become the law of the case. Goo v. Hee Fat, 35 Haw. 827 (1941).Cited in De Mello v. Fong, 37 Haw. 415 (1946).

67. Enforcement of law.

That the governor shall be responsible for the faithful execution of the laws of the United Statesand of the Territory of Hawaii within the said Territory, and whenever it becomes necessary hemay call upon the commanders of the military and naval forces of the United States in theTerritory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory toprevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and hemay, in case of rebellion or invasion, or imminent danger thereof, when the public safety

requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any partthereof, under martial law until communication can be had with the President and his decisionthereon made known.

Historical note. - The privilege of the writ of habeas corpus was suspended and the Territorywas placed under martial law on the afternoon of December 7, 1941. Proclamation of martial lawwas modified September 2, 1942, and February 8, 1943. Martial law terminated and the privilegeof the writ was restored by Presidential Proclamation 2627, October 18, 1944, effective October



24, 1944, 9 F.R. 12831, and Governor's proclamation of October 24, 1944. For military powersthereafter see Executive Order 9489, October 18, 1944, effective October 24, 1944, 9 F.R.12831. See also Executive Order 8987, 6 F.R. 6675.

CASE NOTES

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

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

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

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

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

Suspension of writ of habeas corpus. - It is history that the islands were invaded on December7, 1941. Such being the case, the governor's suspension until further notice of the privilege of thewrit of habeas corpus, with the approval of the President, was authorized by the Constitution andby specific act of Congress. Zimmerman v. Walker, 132 F.2d 442 (9th Cir. 1942), cert. denied,319 U.S. 744, 63 S. Ct. 1027, 87 L. Ed. 1700 (1943).

68. General powers of the governor.

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



CASE NOTES

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

69. Secretary of the Territory; acting secretary.

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

The secretary may, with the approval of the governor, designate some other officer of thegovernment of the Territory of Hawaii to act as secretary during his temporary absence or duringhis illness. Such designation and approval shall be in writing and shall be filed in the office of the governor, and a copy thereof, certified by the governor, shall be filed in the office of theSecretary of the Interior of the United States. Such person so designated shall, during thetemporary absence or illness of the secretary, be known as the acting secretary of the Territory of Hawaii, and shall have and exercise all the powers and duties of the secretary, except thoseprovided for by section 70 of this Act (U.S.C., title 48, § 535). Such acting secretary shall servewithout additional compensation, but the secretary shall be responsible and liable on his officialbond for all acts done by the acting secretary in the performance of his duties as acting secretary.

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

70. Acting governor in certain contingencies.

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

71. Attorney-general.

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

CASE NOTES



Attorney general had the power and right to present criminal matters to the grand jury

without the authority and permission of the county attorney. In re Bevins, 26 Haw. 570 (1922).

72. Treasurer.

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

CASE NOTES

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

73. Commissioner of public lands.

(a) That when used in this section -

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

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

(3) The term "public lands" includes all lands in the Territory of Hawaii classed as governmentor crown lands previous to August 15, 1895, or acquired by the government upon or subsequentto such date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in

any other manner; except (1) lands designated in section 203 of the Hawaiian HomesCommission Act, 1920, (2) lands set apart or reserved by Executive order by the President, (3)lands set aside or withdrawn by the governor under the provisions of subdivision (q) of thissection, (4) sites of public buildings, lands used for roads, streets, landings, nurseries, parks,tracts reserved for forest growth or conservation of water supply, or other public purposes, and(5) lands to which the United States has relinquished the absolute fee and ownership, unlesssubsequently placed under the control of the commissioner and given the status of public lands inaccordance with the provisions of this Act, the Hawaiian Homes Commission Act, 1920, or theRevised Laws of Hawaii of 1915; and

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

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

(c) The laws of Hawaii relating to public lands, the settlement of boundaries, and the issuance of patents on land commission awards, except as changed by this Act, shall continue in force until



Congress shall otherwise provide. Subject to the approval of the President, all sales, grants,leases, and other dispositions of the public domain, and agreements concerning the same, and allfranchises granted by the Hawaiian government in conformity with the laws of Hawaii, betweenthe 7th day of July, 1898, and the 28th day of September, 1899, are hereby ratified andconfirmed. In said laws "land patent" shall be substituted for "royal patent"; "commissioner of

public lands," for "minister of the interior," "agent of public lands," and "commissioners of public lands," or their equivalents; and the words "that I am a citizen of the United States," or"that I have declared my intention to become a citizen of the United States, as required by law,"for the words "that I am a citizen by birth (or naturalization) of the Republic of Hawaii," or "thatI have received letters of denization under the Republic of Hawaii," or "that I have received acertificate of special right of citizenship from the Republic of Hawaii."

(d) No lease of the surface of agriculture lands or of undeveloped and public land which iscapable of being converted into agricultural land by the development, for irrigation purposes, of either the underlying or adjacent waters, or both, shall be granted, sold, or renewed by thegovernment of the Territory of Hawaii for a longer period than sixty-five years. Each such lease

shall be sold at public auction to the highest bidder after due notice as provided in subdivision (i)of this section and the laws of the Territory of Hawaii. Each such notice shall state all the termsand conditions of the sale. The land, or any part thereof so leased, may at any time during theterm of the lease be withdrawn from the operation thereof for homestead or public purposes,upon the payment of just compensation for such withdrawal. Every such lease shall contain aprovision to that effect: Provided, That the commissioner may, with the approval of the governorand at least two-thirds of the members of the land board, omit such withdrawal provision from,or limit the same in, the lease of any lands whenever he deems it advantageous to the Territory of Hawaii, and land so leased shall not be subject to such right of withdrawal, or shall be subjectonly to a right of withdrawal as limited in the lease.

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

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

(g) No public land for which any such certificate, lease, or agreement is issued after May 27,1910, or any part thereof, or interest therein or control thereof, shall, without the written consentof the commissioner and governor, thereafter, whether before or after a homestead lease or patent



has been issued thereon, be or be contracted to be in any way, directly or indirectly, by processof law or otherwise, conveyed, mortgaged, leased, or otherwise transferred to, or acquired orheld by or for the benefit of, any alien or corporation; or before or after the issuance of ahomestead lease or before the issuance of a patent to or by or for the benefit of any other person;or, after the issuance of a patent, to or by or for the benefit of any person who owns, or holds, or

controls, directly or indirectly, other land or the use thereof, the combined area of which and theland in question exceeds eighty acres. The prohibitions of this paragraph shall not apply totransfers or acquisitions by inheritance or between tenants in common.

(h) Any land in respect of which any of the foregoing provisions shall be violated shall forthwithbe forfeited and resume the status of public land and may be recovered by the Territory or itssuccessors in an action of ejectment or other appropriate proceedings. And noncompliance withthe terms of any such certificate, lease, or agreement, or of the law applicable thereto, shallentitle the commissioner, with the approval of the governor before patent has been issued, withor without legal process, notice, demand, or previous entry, to retake possession and therebydetermine the estate: Provided, That the times limited for compliance with any such approval

upon its appearing that an effort has been made in good faith to comply therewith.

(i) The persons entitled to take under any such certificate, lease, or agreement shall bedetermined by drawing or lot, after public notice as hereinafter provided; and any lot not taken ortaken and forfeited, or any lot or part thereof surrendered with the consent of the commissioner,which is hereby authorized, may be disposed of upon application at not less than the advertisedprice by any such certificate, lease, or agreement without further notice. The notice of any sale,drawing, or allotment of public land shall be by publication for a period of not less than sixtydays in one or more newspapers of general circulation published in the Territory: Provided

however , That (1) lots may be sold for cash or on an extended time basis, as the Commissionermay determine, without recourse to drawing or lot and forthwith patented to any citizen of theUnited States applying therefor, possessing the qualifications of a homesteader as now providedby law, and who has qualified for and received a loan under the provisions of the Bankhead-Jones Farm Tenant Act, as amended or as may hereafter be amended, for the acquisition of afarm, and (2) with or without recourse to drawing or lot, as the commissioner may determine,lots may be leased with or without a right of purchase, or may be sold for cash or on an extendedtime basis and forthwith patented, to any citizen of the United States applying therefor if suchcitizen has not less than two years' experience as a farm owner, farm tenant, or farm laborer: Andprovided further, That any patent issued upon any such sale shall contain the same restrictiveprovisions as are now contained in a patent issued after compliance with a right of purchaselease, cash freehold agreement, or special homestead agreement.

The Commissioner may include in any patent, agreement, or lease a condition requiring theinclusion of the land in any irrigation project formed or to be formed by the Territorial agencyresponsible therefor and making the land subject to assessments made or to be made for suchirrigation project, which assessment shall be a first charge against the land. For failure to pay theassessments or other breach of the condition the land may be forfeited and sold pursuant to theprovisions of this Act, and, when sold, so much of the proceeds of sale as are necessary thereformay be used to pay any unpaid assessments.



( j) The commissioner, with the approval of the governor, may give to any person (1) who is acitizen of the United States or who has legally declared his intention to become a citizen of theUnited States and hereafter becomes such, and (2) who has, or whose predecessors in interesthave, improved any parcel of public lands and resided thereon continuously for the ten years nextpreceding the application to purchase, a preference right to purchase so much of such parcel and

such adjoining land as may reasonably be required for a home, at a fair price to be determined bythree disinterested citizens to be appointed by the governor. In the determination of suchpurchase price the commissioner may, if he deems it just and reasonable, disregard the value of the improvements on such parcel and adjoining land. If such parcel of public lands is reservedfor public purposes, either for the use of the United States or the Territory of Hawaii, thecommissioner may with the approval of the governor grant to such person a preference right topurchase public lands which are of similar character, value, and area, and which are situated inthe same land district. The privilege granted by this paragraph shall not extend to any originallessee or to an assignee of an entire lease of public lands.

(k) The commissioner may also, with such approval, issue, for a nominal consideration, to any

church or religious organization, or person or persons or corporation representing it, a patent forany parcel of public land occupied continuously for not less than five years heretofore and stilloccupied by it as a church site under the laws of Hawaii.

(l) No sale of lands for other than homestead purposes, except as herein provided, and noexchange by which the Territory shall convey lands exceeding either forty acres in area or$15,000 in value shall be made. Leases may be made by the commissioner of public lands, withthe approval of two-thirds of the members of the board of public lands, for the occupation of lands for general purposes, or for limited specified purposes (but not including leases of mineralsor leases providing for the mining of minerals), for terms up to but not in excess of sixty-fiveyears. There shall be a board of public lands, the members of which are to be appointed by thegovernor as provided in section 80 of this Act, and until the legislature shall otherwise providesaid board shall consist of six members, and its members be appointed for a term of four years:Provided, however, That the commissioner shall, with the approval of said board, sell to anycitizen of the United States, or to any person who has legally declared his intention to become acitizen, for residence purposes lots not exceeding three acres in area; but any lot not sold afterpublic auction, or sold and forfeited, or any lot or part thereof surrendered with the consent of thecommissioner, which consent is authorized, may upon application be sold without further publicnotice or auction within the period of two years immediately subsequent to the day of the publicauction, at the advertised price if the sale is within the period of six months immediatelysubsequent to the day of the public auction, and at the advertised price or the price fixed by areappraisal of the land, whichever is greater, if the sale is within the period subsequent to the saidsix months but prior to the expiration of the said two years: and that sales of Government landsor any interest therein may be made upon the approval of said board for business uses or otherundertakings or uses, except those which are primarily agricultural in character, whenever suchsale is deemed to be in the interest of the development of the community or area in which saidlands are located, and all such sales shall be limited to the amount actually necessary for theeconomical conduct of such business use or other undertaking or use: Provided further, That noexchange of Government lands shall hereafter be made without the approval of two-thirds of themembers of said board, and no such exchange shall be made except to acquire lands directly for



public uses: Provided further, That in case any lands have been or shall be sold pursuant to theprovisions of this paragraph for any purpose above set forth and/or subject to any conditions withrespect to the improvement thereof or otherwise, and in case any said lands have been or shall beused by the United States of America, including any department or agency thereof, whetherunder lease or license from the owner thereof or otherwise, for any purpose relating to war or the

national defense and such use has been or shall be for a purpose other than that for which saidlands were sold and/or has prevented or shall prevent the performance of any conditions of thesale of said lands with respect to the improvement thereof or otherwise, then, notwithstanding theprovisions of this paragraph or of any agreement, patent, grant, or deed issued upon the sale of said lands, such use of said lands by the United States of America, including any department oragency thereof, shall not result in the forfeiture of said lands and shall result in the extension of the period during which any conditions of the sale of said lands may be complied with for anadditional period equal to the period of the use of said lands by the United States of America,including any department or agency thereof.

(m) Whenever twenty-five or more persons, having the qualifications of homesteaders who have

not therefore made application under this Act shall make written application to the commissionerof public lands for the opening of agricultural lands for settlement in any locality or district, itshall be the duty of said commissioner to proceed expeditiously to survey and open for entryagricultural lands, whether unoccupied or under lease with the right of withdrawal, sufficient inarea to provide homesteads for all such persons, together with all persons of like qualificationswho shall have filed with such commissioner prior to the survey of such lands writtenapplications for homesteads in the district designated in said applications. The lands to be soopened for settlement by said commissioner shall be either the specific tract or tracts applied foror other suitable and available agricultural lands in the same geographical district and, as far aspossible, in the immediate locality of and as nearly equal to that applied for as may be available:Provided, however, That no leased land, under cultivation, shall be taken for homesteading untilany crops growing thereon shall have been harvested.

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

(o) The commissioner, with the approval of the governor, may by contract or agreementauthorize any person who has the right of possession, under a general lease from the Territory, of agricultural or pastoral lands included in any homestead, to continue in possession of such lands



after the expiration of the lease until such time as the homesteader takes actual possessionthereof under any form of homestead agreement. The commissioner may fix in the contract oragreement such other terms and conditions as he deems advisable.

(p) Nothing herein contained shall be construed to prevent said commissioner from surveying

and opening for homestead purposes and as a single homestead entry public lands suitable forboth agricultural and pastoral purposes, whether such lands be situated in one body or detachedtracts, to the end that homesteaders may be provided with both agricultural and pastoral landswherever there is demand therefor; nor shall the ownership of a residence lot or tract, notexceeding three acres in area, hereafter disqualify any citizen from applying for and receivingany form of homestead entry, including a homestead lease.

(q) All lands in the possession, use, and control of the Territory shall hereafter be managed bythe commissioner, except such as shall be set aside for public purposes as hereinafter provided;all sales and other dispositions of such land shall, except as otherwise provided by the Congress,be made by the commissioner or under his direction, for which purpose, if necessary, the land

may be transferred to his department from any other department by direction of the governor,and all patents and deeds of such land shall issue from the office of the commissioner, who shallcountersign the same and keep a record thereof. Lands conveyed to the Territory in exchange forother lands that are subject to the land laws of Hawaii, as amended by this Act, shall, except, asotherwise provided, have the same status and be subject to such laws as if they had previouslybeen public lands of Hawaii. All orders setting aside lands for forest or other public purposes, orwithdrawing the same, shall be made by the governor, and lands while so set aside for suchpurposes may be managed as may be provided by the laws of the Territory; the provisions of thisparagraph may also be applied where the "public purposes" are the uses and purposes of theUnited States, and lands while so set aside may be managed as may be provided by the laws of the United States. The commissioner is hereby authorized to perform any and all acts, prescribeforms of oaths, and, with the approval of the governor and said board, make such rules andregulations as may be necessary and proper for the purpose of carrying the provisions of thissection and the land laws of Hawaii into full force and effect.

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

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



(r) Whenever any remnant of public land shall be disposed of, the commissioner of public landsshall first offer it to the abutting landowner for a period of three months at a reasonable price inno event to be less than the fair market value of the land to be sold, to be determined by adisinterested appraiser or appraisers, but not more than three, to be appointed by the governor;and, if such owner fails to take the same, then such remnant may be sold at public auction at no

less than the amount of the appraisal: Provided , That if the remnant abuts more than one separateparcel of land and more than one of the owners of these separate parcels are interested inpurchasing said remnant, the remnant shall be sold to the owner making the highest offer abovethe appraised value.

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

Any person or persons holding an unpatented homestead under a special homestead agreement,entered into prior to the effective date of this paragraph, excluding those homesteads under the

control of the Hawaiian Homes Commission as provided in section 203 of the Hawaiian HomesCommission Act, 1920, shall be entitled to a reamortization of the indebtedness due the Territoryof Hawaii on account of such special homestead agreement upon filing an application for thereamortization of said indebtedness with the commissioner within six months after the effectivedate of this paragraph. Upon the filing of any such application, the commissioner shall determinethe balance due the Territory in the following manner: The amount of the principal which wouldhave been paid during the full period of payment provided for in the special homesteadagreement had the agreement been duly performed according to its terms and the amount of theinterest which would have been paid under the special homestead agreement prior to theeffective date of this paragraph had the agreement been duly performed according to its termsshall be computed and added together; from the sum of these amounts there shall be deducted allmoneys that have been actually paid to the Territory on account of the special homesteadagreement, whether as principal or as interest. The balance thus determined shall be the totalamount remaining due and payable for the homestead covered by such special homesteadagreement, any other terms, conditions, or provisions in any of said agreements, or anyprovisions of law to the contrary notwithstanding: Provided, however, That nothing hereincontained shall be deemed to excuse the payment of taxes and other charges and assessmentsupon unpatented homestead lands as provided in said agreements, nor to excuse or modify anyterm, condition, or provision of said agreements other than such as relate to the principal andinterest payable to the Territory. The total amount remaining due, determined as hereinaboveprovided, shall be payable in fifteen equal biennial installments. Simple interest at the rate of three per centum per annum shall be charged upon the unpaid balance of such installments,whether matured or unmatured, said interest to be computed from the effective date of thisparagraph and to be payable semi-annually. The first payment on account of principal shall bedue two years subsequent to the effective date of this paragraph, and thereafter the due dates of principal payments shall be at regular two-year periods; the first payment on account of interestshall be due six months subsequent to the effective date of this paragraph, and thereafter the duedates of interest payments shall be at regular six-month periods. In case of default in payments of principal or interest on the due dates as hereby fixed the commissioner may, with the approval of the governor, with or without legal process, notice, demand, or previous entry, take possession of



the land covered by any such special homestead agreement and thereby determine the estatecreated by such agreement as hereby modified, whereupon liability for payment of any balancethen due under such special homestead agreement shall terminate. When the aforesaid paymentshave been made to the Territory of Hawaii, and all taxes, charges, and assessments upon the landhave been paid as provided by said agreements, and all other conditions therein stipulated have

been complied with, except as herein excused or modified, the said special homesteadagreements shall be deemed to have been performed by the holders thereof, and land-patentgrants covering the land described in such agreements shall be issued to the parties mentionedtherein, or their heirs or assigns, as the case may be.

Neither the Territory of Hawaii nor any of its officers, agents or representatives shall be liable toany holder of any special homestead agreement, past or present, whether or not a patent shallhave issued thereon, or to any other person, for any refund or reimbursement on account of anypayment to the Territory in excess of the amount determined as provided by the precedingparagraph, and the legislature shall not recognize any obligation, legal or moral, on account of such excess payments.

[Am April 2, 1908, c 124, 35 Stat 56; May 27, 1910, c 258, § 5, 36 Stat 444; July 9, 1921, c 42,§§ 304 to 311, 42 Stat 116; July 27, 1939, c 383, 53 Stat 1126; June 12, 1940, c 336, 54 Stat 345;Aug. 21, 1941, c 394, 55 Stat 568; Sept. 26, 1941, c 426, 55 Stat 734; Aug. 7, 1946, c 771, 60Stat 871; July 9, 1952, cc 616, 617, 66 Stat 514, 515; April 6, 1956, c 180, § 1 and c 185, § 1, 70Stat 102, 104; Aug. 1, 1956, c 820, § 1 and c 859, 70 Stat 785, 918; July 18, 1958, Pub L 85-534,§ 1, 72 Stat 379; Aug. 14, 1958, Pub L 85-650, § 2, 72 Stat 606; Aug. 21, 1958, Pub L 85-718,72 Stat 709; Aug. 28, 1958, Pub L §§ 1, 2, 72 Stat 971; L 1959, JR 21, § 1 am and rat L 1960, c15, § 2]

Historical note. - The effective date of the last two paragraphs of this section was June 12, 1940.

The Act of July 10, 1937, c. 484, 50 Stat. 508, 48 U.S.C. § 562g, provides in part: "That theLegislature of the Territory of Hawaii may create a public corporate authority to engage in slumclearance, or housing undertakings, or both, within such Territory. . . . The legislature . . . may,without regard to any federal Acts restricting the disposition of public lands of the Territory,authorize the commissioner of public lands, the Hawaiian homes commissioners, and any otherofficers of the Territory having power to manage and dispose of its public lands, to grant,convey, or lease to such authority parts of the public domain, and may provide that any of thepublic domain or other property acquired by such authority may be mortgaged by it as securityfor its bonds. . . ."

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

The Act of August 7, 1946, c. 787, 60 Stat. 884, provided that the provisions relating toexchange should not apply to the acquisition of certain lands in Hilo.

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



The amendments of July 9, 1921, are part of the "Hawaiian Homes Commission Act, 1920." SeeJoint Resolution of annexation and the note thereto, RLH 1955, page 13, in regard to the cessionof public lands to the United States, their status, disposition thereof, application of the proceedsthereof, and grants of franchises, between annexation and the establishment of territorialgovernment. See Chronological Note of Acts Affecting Hawaii for Acts of Congress,

Presidential proclamations and Executive orders relating to public lands, RLH 1955, page 9ff.See also the note to §§ 75, 89, 91, 95, 97 and 99 of the Organic Act on public lands. As to shores,harbors, etc. see § 106 the Organic Act. Quaere, whether the federal statute, 29 Stat. 618, 8U.S.C.A. 71-77 (see now 48 U.S.C. §§ 1501 to 1508), relating to disabilities of aliens to holdland in territories in general applies to Hawaii.

For related federal acts, see the Act of April 6, 1956, c. 184, 70 Stat. 104, and the Act of Aug. 20,1958, Pub. L. 85-694, 72 Stat. 686, authorizing the amendment of certain patents of governmentlands by removing the conditions therein restricting use of such lands. See also the Act of August18, 1958, Pub. L. 85-677, 72 Stat. 628, granting the status of public lands to certain reef lands.

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

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

For related territorial acts, effective upon approval by Congress of legislation making the actsvalid without approval by Congress, or upon ratification by the state legislature, see L. 1957, c.39, permitting holders of certain public lands to mortgage the land without necessity of obtaining

governor's consent. See also L. 1959, c. 180, s. 2, amending the second paragraph of this section73(r) to read: "The term 'remnant' shall mean a parcel of land unsuitable for development as aseparate unit, and, in case of an urban area, no larger than five thousand square feet in size, or incase of a suburban or rural area, no larger than one and one-half acres in size." In addition, see L.1959, c. 269, authorizing the subdivision, improvement and leasing of public lands for residentialpurposes to qualified persons selected by drawing without public auction. Furthermore, see L.1959, J.R. 2, s. 1, amending this section 73(g) by adding to the first sentence proviso to read:"Provided, That if consent be given to a mortgage or other transfer for security purposes to anestablished lending agency and such agency be the Federal Housing Administration or othersimilar federal or territorial agency or a corporation authorized to do business as a lendingagency in the Territory or elsewhere in the United States, no further consent shall be requiredfor: (1) any subsequent assignment or reassignment made by such agency or assignee thereof to alike lending agency for refinancing or other security purposes; or (2) any transfer made at aforeclosure sale held pursuant to the provisions of said mortgage or transfer for securitypurposes; or (3) any subsequent transfer made by the purchaser at said foreclosure sale if thetransferor shall be such agency or assignee thereof, provided that all other or further dispositionshall be made only in accordance with the provisions of this act."



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

CASE NOTES

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

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

Authority of commissioner to sell land. - The former proviso of this section which gave

discretionary authority to the commissioner of public lands to sell public lands in the interest of the development of the community or area in which the lands were located did not unlawfullydelegate legislative authority in violation of U.S. Const., Art. I, § 1. Fasi v. King, 41 Haw. 461(1956).

Withdrawal of leased lands. - The authority granted by this section includes the power towithdraw leased lands when it is desired to devote them to homestead purposes or to devote themto public purposes. It does not include the power to withdraw them in order that with theirproceeds other lands can be acquired which in turn will be cut up into homesteads or used forother public purposes. Chung K. Ai v. Bailey, 30 Haw. 210 (1927).

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

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

Where the express terms of lease contemplated varying methods by which the property couldrevert to the lessor, those methods were of equal force and effect unless the contrary appeared.

Hee Kee Chun v. United States, 194 F.2d 176 (9th Cir. 1952).

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



Refund of purchase price. - The appropriation of a sum of money by the legislature for theavowed purpose of refunding a portion of the purchase price of public lands which had been soldat a price fairly fixed by the executive department having authority to fix it was clearly anattempt by the legislature to repudiate, overturn and set aside the lawful act of a coordinatebranch of the government and to substitute its judgment for that of the department upon which

the law cast the duty of exercising its judgment. The act constituted an attempt to divert publicfunds to private use without any moral or equitable obligation or other consideration of publicpolicy to support it. It was not therefore a rightful subject of legislation. In re Tavares, 26 Haw.101 (1921).

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

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

Decree conclusive. - Because full authority with respect to the administration, management, anddisposition of Hawaii's public lands had been committed to Hawaii by Congress by the terms of

this section and § 91 of the Organic Act, a land court decree was conclusive upon the UnitedStates. Sotomura v. County of Haw., 402 F. Supp. 95 (D. Haw. 1975).

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




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

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

Proposed permit to an individual for the use of the Waiahole Forest Reserve could not be issuedby the board of commissioners of agriculture and forestry. Such a disposition of an interest inland could only be made by the commissioner of public lands or under his direction. Op. Att'yGen. No. 59-96 (1959).

Land set aside for public purposes. - Although the governor had the authority under subsection(q) to set aside public lands for public purposes, §§ 206 and 212 of the Hawaii Homes

Commission Act did not authorize the governor to set aside Hawaiian home lands temporarilyreturned by the Hawaiian homes commission; unleased Hawaiian home lands, prior to 1959,could be leased to the general public for revenue purposes only pursuant to subsection (q). Op.Att'y Gen. No. 75-3 (1975). An executive order in 1955 purporting to set aside Hawaii homelands for a park pursuant to subsection (q) did not have to be withdrawn under § 171-11 becausethe executive order was invalid and of no effect under Hawaii Homes Commission Act §§ 206and 212. Op. Att'y Gen. No. 75-3 (1975).

Land used for military purposes. - Lands set aside by executive order to the use of the UnitedStates for military purposes previous to the passage of the Hawaiian Homes Commission Actwere not "public lands" and therefore were not "available lands" granted by that act to the

Hawaiian homes commission. Op. Att'y Gen. No. 64-44 (1964).

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

LEGAL PERIODICALS

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

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

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



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

Comment, State-Federal Jurisdictional Conflict over the Internal Waters and Submerged Landsof the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

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

74. Commissioner of agriculture and forestry.

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

CASE NOTES

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

75. Superintendent of public works.

That there shall be a superintendent of public works, who shall have the powers and duties of thesuperintendent of public works and those of the powers and duties of the minister of the interiorwhich relate to streets and highways, harbor improvements, wharves, landings, waterworks,railways, electric light and power, telephone lines, fences, pounds, brands, weights andmeasures, fires and fireproof buildings, explosives, eminent domain, public works, markets,

buildings, parks and cemeteries, and other grounds and lands now under the control andmanagement of the minister of the interior, and those of the powers and duties of the minister of finance and collector-general which relate to pilots and harbor masters under the laws of Hawaii,except as changed by this Act and subject to modification by the legislature. In said laws theword "legislature" shall be substituted for "councils" and the words "circuit court" for "theHawaiian Postal Savings Bank."

CASE NOTES

Cited in Dole v. Cooper, 15 Haw. 297 (1903); Territory of Haw. v. Supervisors of Oahu, 15Haw. 365 (1904); Pratt v. Holloway, 17 Haw. 539 (1906); McCandless v. Carter, 18 Haw. 221

(1907); Hilo Meat Co. v. Antone, 23 Haw. 675 (1917).

76. Superintendent of public instruction.

That there shall be a superintendent of public instruction, who shall have the powers and performthe duties conferred upon and required of the minister of public instruction by the laws of Hawaiias amended by this Act, and subject to modification by the legislature.



It shall be the duty of the United States Commissioner of Labor to collect, assort, arrange, andpresent in reports in nineteen hundred and five, and every five years thereafter, statistical detailsrelating to all departments of labor in the Territory of Hawaii, especially in relation to thecommercial, industrial, social, educational, and sanitary condition of the laboring classes, and toall such other subjects as Congress may by law direct. The said Commissioner is especially

charged to ascertain the highest, lowest, and average number of employees engaged in thevarious industries in the Territory, to be classified as to nativity, sex, hours of labor, andconditions of employment, and to report the same to Congress.

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

Editor's Note. - The duties of the United States Commissioner of Labor, referred to in thissection, are now performed by the United States Commissioner of Labor Statistics.

CASE NOTES

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

77. Comptroller and Deputy Comptroller.

There shall be a comptroller and deputy comptroller, who shall have the powers and dutiesconferred upon and required by the auditor-general and deputy auditor-general, respectively, byAct thirty-nine of the session laws as amended by this Act, subject to modification by thelegislature. In said Act "officer" shall be substituted for "minister" where used without otherdesignation.

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

CASE NOTES

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

77A. Post-Auditor.

There shall be a post-auditor who shall be appointed by the Governor by and with the advice andconsent of the Senate, who shall serve for a term of eight years and until a successor shall havebeen duly appointed. He shall have such powers and duties relating to the post-audit of Territorial and county accounts and appropriations as may be prescribed by law. The legislature,

by a two-thirds vote of the members in joint session, may remove the post-auditor at any time forcause.

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

78. Surveyor.



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

CASE NOTES

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

79. High sheriff.

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

CASE NOTES

Cited in Appeal of Cooper, 14 Haw. 282 (1902); Territory of Haw. v. Supervisors of Oahu, 15

Haw. 365 (1904); Carter v. Gear, 16 Haw. 242 (1904).

80. Appointment, removal, tenure, and salaries of officers.

The President shall nominate and, by and with the advice and consent of the Senate, appoint thechief justice and justices of the supreme court, who shall hold office for the term of seven yearsunless sooner removed by the President, and the judges of the circuit courts who shall hold officefor the term of six years, unless sooner removed by the President; and the governor shallnominate and, by and with the advice and consent of the senate of the Territory of Hawaii,appoint the attorney-general, treasurer, commissioner of public lands, commissioner of agriculture and forestry, superintendent of public works, superintendent of public instruction,

auditor, deputy auditor, surveyor, high sheriff, members of the board of health, commissioners of public instruction, board of prison inspectors, board of registration and inspectors of election,and any other boards of a public character that may be created by law, except for the board of trustee of the employees' retirement system; and he may make such appointments when thesenate is not in session by granting commissions, which shall, unless such appointments areconfirmed, expire at the end of the next session of the senate. He may, by and with the adviceand consent of the senate of the Territory of Hawaii, remove from office any of such officers. Allsuch officers shall hold office for four years and until their successors are appointed andqualified, unless sooner removed, except the commissioners of public instruction and themembers of said boards, whose term of office shall be as provided by the laws of the Territory of Hawaii.

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

The manner of appointment and removal and the tenure of all other officers shall be as providedby law; and the governor may appoint or remove any officer whose appointment or removal isnot otherwise provided for.



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

All officers appointed under the provisions of this section shall be citizens of the Territory of

Hawaii and shall have resided therein for at least three years next preceding their appointment.

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

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

[Am March 3, 1905, c 1465, § 2, 33 Stat 1035; July 9, 1921, c 42, § 312, 42 Stat 119; May 9,

1956, c 237, § 1, 70 Stat 130; Aug. 28, 1958, Pub L 85-793, 72 Stat 957]

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

CASE NOTES

Appointment of circuit court judges. - Section 603-41, which provides for the temporaryassignment of a circuit judge to another circuit, is not in conflict with this section. Section 603-41 does not purport to authorize the appointment of a judge of any circuit in case of a vacancy. Itproceeds upon the assumption that in due course the power of appointment referred to in this

section will be exercised by those who are vested with the power so to do. Fraga ex rel. Fraga v.Hoffschlaeger Co., 26 Haw. 557 (1922), aff 'd, 290 F. 146 (9th Cir. 1923) (decided under priorlaw).

Suspension. - The governor does not have authority to suspend an officer, who, by the terms of this section, must be appointed and may be removed by the governor by and with the advice andconsent of the Senate and who is to hold his office for four years unless sooner removed. In reAustin, 15 Haw. 114 (1903).

Cited in Robertson v. Pratt, 13 Haw. 590 (1901); Hind v. Wilder's S.S. Co., 14 Haw. 215 (1902);Appeal of Cooper, 14 Haw. 282 (1902); Ninomiya v. Kepoikai, 15 Haw. 273 (1903); Dole v.

Cooper, 15 Haw. 297 (1903); Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904);Carter v. Gear, 16 Haw. 242 (1904).

LEGAL PERIODICALS

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



ARTICLE 4. The Judiciary.

81.

That the judicial power of the Territory shall be vested in one supreme court, circuit courts, and

in such inferior courts as the legislature may from time to time establish. And until the legislatureshall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts andtheir jurisdiction and procedure shall continue in force except as herein otherwise provided.

Historical note. - By the Act of April 19, 1930, the Hawaii National Park was removed fromterritorial jurisdiction, except for certain purposes therein stated.

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

CASE NOTES

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

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

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

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

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

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



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

Offenses on naval reservation. - The district court has jurisdiction of an assault and battery

committed by a commander of the United States Navy on the naval reservation in Honolulu.Territory v. Carter, 19 Haw. 198 (1908).

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

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

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

LEGAL PERIODICALS


82. Supreme Court.

That the supreme court shall consist of a chief justice and two associate justices, who shall becitizens of the Territory of Hawaii and shall be appointed by the President of the United States,by and with the advice and consent of the Senate of the United States, and may be removed bythe President: Provided, That any vacancy or vacancies occurring within the court, whether byreason of disqualification, disability, death, resignation, removal, absence from the Territory orinability to attend, or for any other reason, shall, for the hearing and determination of any cause,be temporarily filled as provided by the law of said Territory, and, if there be no such law, thenby appointment from among the circuit judges of the Territory by the remaining justices or

justice, and if there be no such justice, then by the governor.

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

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



CASE NOTES

Vacancies. - Under this section and RLH 1945, § 9610 (see now § 602-10), parties to pendingcauses could not be compelled to go to trial before the two remaining justices during a vacancy,however created. Moreover, those sections did not empower the two remaining justices to

authorize a circuit judge to sit with them to hear and determine causes during a vacancy in theoffice of a third former justice. Menashe v. Sutton, 38 Haw. 449 (1950).

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

LEGAL PERIODICALS


83. Laws continued in force.

That the laws of Hawaii relative to the judicial department, including civil and criminalprocedure, except as amended by this Act, are continued in force, subject to modification byCongress, or the legislature. The provisions of said laws or any laws of the Republic of Hawaiiwhich require juries to be composed of aliens or foreigners only, or to be constituted byimpaneling natives of Hawaii only, in civil and criminal cases specified in said laws, arerepealed, and all juries shall hereafter be constituted without reference to the race or place of nativity of the jurors; but no person who is not a citizen of the United States and twenty-oneyears of age and who cannot understandingly speak, read, and write the English language shallbe a qualified juror or grand juror in the Territory of Hawaii. No person shall be convicted in anycriminal case except by unanimous verdict of the jury. No plaintiff or defendant in any suit or

proceeding in a court of the Territory of Hawaii shall be entitled to a trial by a jury impaneledexclusively from persons of any race. Until otherwise provided by the legislature of theTerritory, grand juries may be drawn in the manner provided by the Hawaiian statutes fordrawing petty juries, and shall sit at such times as the circuit judges of the respective circuitsshall direct; the number of grand jurors in each circuit shall be not less than thirteen, and themethod of the presentation of cases to said grand jurors shall be prescribed by the supreme courtof the Territory of Hawaii. The several circuit courts may subpoena witnesses to appear beforethe grand jury in like manner as they subpoena witnesses to appear before their respective courts.

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

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

CASE NOTES

Acquittal. - A statute in force in the Hawaiian Islands at the time of their annexation to theUnited States and continued in force in the territorial courts, providing that the successivedisagreement of two juries in a criminal case shall operate as an acquittal, did not govern the



United States District Court for the Territory. United States v. Bower, 4 U.S.D.C. Haw. 466(1914).

Subpoenas. - The provision of this section that "the several circuit courts may subpoenawitnesses to appear before the grand jury in like manner as they subpoena witnesses to appear

before their respective courts" refers merely to the ordinary process of subpoena and the ordinarymeans of compelling obedience to such process and of punishing disobedience. In re Craig exrel. Ortiz, 20 Haw. 447 (1911).

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

Unanimous verdict. - This section does not require that no person shall be tried for any criminaloffense except by a jury, but that in all criminal trials by a jury an unanimous verdict shall be

necessary for conviction. Ex parte Higashi, 17 Haw. 428 (1906).

Cited in Fugihara Oriemon v. Territory of Haw., 13 Haw. 413 (1901); Coffield v. Territory of Haw., 13 Haw. 478 (1901); Ex parte Ah Oi, 13 Haw. 534 (1901); Ex parte Wilder's S.S. Co., 183U.S. 545, 22 S. Ct. 225, 46 L. Ed. 321 (1902); Territory v. Ferris, 15 Haw. 139 (1903); Hawaii v.Mankichi, 190 U.S. 197, 23 S. Ct. 787, 47 L. Ed. 1016 (1903); Territory of Haw. v. Ng Kow, 15Haw. 602 (1904); Carter v. Gear, 16 Haw. 242 (1904); In re Anin, 17 Haw. 341 (1906); In reEWA Plantation Co., 18 Haw. 530 (1908); Territory of Haw. ex rel. Pratt v. Kapiolani Estate,Ltd., 18 Haw. 640 (1908); Territory of Haw. v. Soga, 20 Haw. 71 (1910); Territory of Haw. v.Holt, 20 Haw. 240 (1910); In re Grand Jury, 20 Haw. 255 (1910); Wynne v. United States, 217U.S. 234, 30 S. Ct. 447, 54 L. Ed. 748 (1910); Soga v. Jarrett, 3 U.S.D.C. Haw. 502 (1910);

Territory of Haw. v. Chisi Nishimura, 22 Haw. 614 (1915); Territory of Haw. v. Kiyoto Taketa,27 Haw. 844 (1924); United States v. Fujimoto, 105 F. Supp. 727 (D. Haw. 1952); State v. Jones,45 Haw. 247, 365 P.2d 460 (1961).

LEGAL PERIODICALS


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

That no person shall sit as a judge or juror in any case in which his relative by affinity or byconsanguinity within the third degree is interested, either as a plaintiff or defendant, or in theissue of which the said judge or juror has, either directly or through such relative, any pecuniaryinterest; nor shall any person sit as a judge in any case in which he has been of counsel or on anappeal from any decision or judgment rendered by him, and the legislature of the Territory mayadd other causes of disqualification to those herein enumerated.

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



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

CASE NOTES

Intent of Congress. - The intent of Congress, as expressed in this section, was that a judgeshould not sit in a case where, with reference to that case, the relation of attorney and client hadexisted between him and one of the parties, whether he was personally familiar with the case orhad advised in regard to it or not. Magoon v. Lord-Young Eng'g Co., 22 Haw. 245 (1914).

Application. - The provision in this section that "No judge shall sit on an appeal, or new trial, inany case in which he may have given a previous judgment" applies to only (1) an appeal or (2) anew trial in (3) the same case in which the judge has given a previous judgment. Ex parte OsakiMankichi, 13 Haw. 570 (1901).

Affidavit of bias and prejudice not sufficient to disqualify circuit judge from trying with a

jury a criminal case if the alleged ground of such disqualification is not one set forth in thissection or in any statute of the Territory passed in conformity therewith. Territory v. Eckart, 31Haw. 920 (1931).

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

No bias shown where judge had punished attorney for contempt on three previous

occasions. - That a judge on three different occasions some years ago had punished an attorney

for contempt of court did not of itself show bias or prejudice on the part of such judge against theattorney. In re Davis, 15 Haw. 377 (1904).

Pecuniary interest essential to disqualification absent relationship between judge and

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

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

Previous judgment. - This section does not prevent a circuit judge who had ordered a nonsuit,which was set aside by the supreme court, from entertaining a motion for a change of venue



based on the ground that an impartial jury cannot be obtained in the circuit in which the action ispending. Spreckels v. De Bolt, 16 Haw. 476 (1905).

Judge may excuse himself . - In addition to this section relating to disqualification for reasons of relationship, pecuniary interest or previous judgment, an appellate judge may sua sponte excuse

himself from participating in a case where he feels that there are compelling moral reasons orwhere there exists in his own mind some real doubts as to the impartiality which he as anindividual may exert on the matter before him as a judicial officer. In re Sawyer, 41 Haw. 270(1956).

Judge disqualified. - A judge is disqualified if through a relative he has a pecuniary interest inthe issue of the case, but the fact that a relative has a pecuniary interest does not disqualify the judge under the terms of this section unless, owing to the nature of the relation, in some way hehas a pecuniary interest through the relative, as, for instance, in the case of husband and wife,father and child, or of an obligation, whether moral or legal, to support the relative, or of aderived or common interest due to any cause. In all such instances and in any case, the existence

of a pecuniary interest disqualifies. EWA Plantation Co. v. Holt, 18 Haw. 509 (1907).

When a judge, prior to his accession to the bench, has been counsel in a justiciable matter whichsubsequently assumes the form of active litigation, he is disqualified to sit in its hearing anddetermination. Henry Waterhouse Trust Co. v. Treadway, 29 Haw. 256 (1926).

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

A justice of the supreme court is disqualified to sit in review upon a question of law reserved to

the court by a circuit judge, which question requires the court to determine the validity orinvalidity of an order previously made by said justice when a circuit judge. In re Estate of Beckley, 31 Haw. 150 (1929).

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

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



Under the terms of a former partnership agreement, all law business coming to either member of a firm, one of whom was the chief justice, was to be deemed to be the business of the firm, andall employments of either member as attorney were to be deemed to be employments of the firm.Where a client hired one of the attorneys, the chief justice was disqualified. The fact that he took no part in the case and had no knowledge of its issues did not alter his status. In re Hawaii Tel.

Co., 26 Haw. 405 (1922).

A judge who, in a proceeding instituted in the land court of the Territory for the registration of title to land, acted as attorney for one of the parties summoned as an adjoining owner, wasdisqualified to sit as a member of the supreme court upon a review of the same proceeding bywrit of error, even though his client filed in the land court a disclaimer of all interest in the land.In re American Sugar Co., 29 Haw. 438 (1926).

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

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

A justice of the supreme court is not disqualified to sit in a case by reason of having beencounsel of record as a member of a partnership which had been retained in the case, he havingtaken no active part in the case nor advised upon the questions in issue, and there being no

statutory provision disqualifying him by reason of having been of counsel. Love v. Love, 17Haw. 194 (1905).

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

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

A circuit judge is not disqualified to hear or determine a partition suit by reason of a pecuniaryinterest therein because of his having made an order directing the payment of an attorney's feefor services rendered for the judge in a prohibition proceeding growing out of the partition suit,



out of a fund in court belonging to the parties to the suit, such order having no connection withthe subject matter or issues of that suit. Scott v. Stuart, 22 Haw. 641 (1915).

Chief justice of the supreme court of the Territory was not disqualified to sit in disbarmentproceedings where it did not appear that any relative of his, either by affinity or consanguinity

within the third degree, was interested in the cause, either as plaintiff or defendant, or that he hadany pecuniary interest in the issue thereof, either directly or through any such relative. In reDavis, 2 U.S.D.C. Haw. 54 (1904).

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

Circuit judge was not barred from directing a guardian to file an inventory and account becausehe had acted as one of the attorneys for the petitioner in presenting her petition and securing her

appointment as guardian. In re Hitchcock, 20 Haw. 553 (1911).

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

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

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

Removal of district magistrate. - Where a district magistrate as an attorney at law, with fullknowledge of the facts, accepts and continues in an employment, the purpose of which is toconsummate an illegal marriage and avoid criminal prosecution in a matter that might well comebefore him as district magistrate, his removal from office is deemed necessary for the publicgood. In re Soares, 27 Haw. 509 (1923) (decision under prior law).

Where testimony of judge given in case becomes subject matter of review on appeal, he

should not sit in appellate court. In re Estate of Banning, 9 Haw. 354 (1894).

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



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

Congress, in use of the term "plaintiff or defendant," must have intended a party to the

record, one who brings or is bound to appear and answer or defend a cause in court. Lucas v.Lucas, 20 Haw. 433 (1911).

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

Mandamus does not lie to make judge reverse his decision of no disqualification. - Where a judge has determined that under the Organic Act he is not disqualified from hearing a cause,

mandamus does not lie to make him reverse that decision and to assign the cause. Territory exrel. Scott v. Stuart, 22 Haw. 576 (1915).

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

ARTICLE 5. United States Officers.

85. Delegate to Congress.

That a Delegate to the House of Representatives of the United States, to serve during eachCongress, shall be elected by the voters qualified to vote for members of the house of representatives of the legislature.

Such Delegate shall possess the qualifications necessary for membership of the senate of thelegislature of Hawaii. Such election shall be held on the first Tuesday after the first Monday inNovember of every even year and at such places as shall be designated by the secretary of theTerritory. The ballot for Delegate shall be such as the legislature of Hawaii may designate, and

until provision is made by the territorial legislature the ballot shall be of pink paper and shall beof the same general form as those used for the election of representatives to the legislature.

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



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

Every such Delegate shall have a seat in the House of Representatives with the right of debate,but not of voting. In case of a vacancy occurring in the office of Delegate, the governor of the

Territory is directed to call a special election to fill such vacancy: Provided, however, That novacancy shall be filled which occurs within five months of the expiration of a Congressionalterm.

The legislature of the Territory of Hawaii shall have the right to alter or amend any part of theelection laws of said Territory, including those providing for an election of Delegate to Congress,and its action shall be the law, with full binding force, until altered, amended, or repealed byCongress.

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

CASE NOTES

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


86. Federal court.

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

[Am March 3, 1909, c 269, § 1, 35 Stat 838; March 3, 1911, c 231, § 291, 36 Stat 1167; March 4,1921, c 161, § 1, 41 Stat 1412; July 9, 1921, c 42, § 313, 42 Stat 119; June 1, 1922, c 204, TitleII, 42 Stat 599, 614, 616; Jan. 3, 1923, c 21, Title II, 42 Stat 1068, 1084; Feb. 12, 1925, c 220, 43Stat 890; Feb. 13, 1925, c 229, § 13, 43 Stat 936; Dec. 13, 1926, c 6, § 1, 44 Stat 919; Jan. 31,1928, c 14, § 1, 45 Stat 54; July 31, 1946, c 704, § 1, 60 Stat 716; June 25, 1948, c 646, §§ 8, 39,62 Stat 986, 992; rep March 18, 1959, Pub L 86-3, § 14(f), 73 Stat 4]

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

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



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

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

CASE NOTES

This section placed courts of the Territory on the same footing as courts of the several

States so far as appeals to and writs of error from the federal courts were concerned. Hind v.Wilder's S.S. Co., 13 Haw. 174 (1900), appeal denied, 108 F. 113 (9th Cir. 1901), appealdismissed, 183 U.S. 54, 22 S. Ct. 225, 46 L. Ed. 321 (1902).

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

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

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

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

Federal question required for review. - Where the record did not show that any federal

question was raised or suggested before the assignment of error, a judgment of the supreme courtof Hawaii cannot be reviewed by U.S. supreme court. Honolulu Rapid Transit & Land Co. v.Wilder, 211 U.S. 144, 29 S. Ct. 46, 53 L. Ed. 124 (1908).

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

Jurisdiction. - The language from the Organic Act, as amended, apparently makes applicable tothe Territory the provisions of Section 76, 28 U.S.C.A. as applied to state courts. This wouldrequire that the jurisdiction of the district court be sustained. Yeung v. Territory of Haw., 132

F.2d 374 (9th Cir. 1942).

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

United States district court for the territory is court of federal jurisdiction only, made so bySection 86 of the Act of Congress of April 30, entitled an Act to provide a government for the



Territory of Hawaii. John D. Spreckels & Bros. Co. v. Steamship "Nevadan" & Am. HawaiianS.S. Co., 1 U.S.D.C. Haw. 354 (1903).

Waiver of right of objection to U.S. district court's jurisdiction. - In a cause removed to theU.S. District Court for the District of Hawaii, the defendant waived any right of objection to the

district court's jurisdiction of the person by entering into stipulation extending time to answer.Cornn v. Wardell, 4 U.S.D.C. Haw. 605 (1915).

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

United States District Court for District of Hawaii could not be deprived of jurisdiction as

court of admiralty by any act of the territorial legislature, particularly by statute, purporting toabolish common-law remedies in personal injury cases. Hong v. American S.S. "Claudine", 4

U.S.D.C. Haw. 717 (1916).

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

Federal courts will pay deference to territorial court's decisions. - The rule that a federalcourt will pay deference to decisions of territorial courts on matters of local concern is applicableto decisions of the supreme court of the Territory. Waialua Agric. Co. v. Christian, 305 U.S. 91,59 S. Ct. 21, 83 L. Ed. 60, reh'g denied, 305 U.S. 673, 59 S. Ct. 240, 83 L. Ed. 2d 436 (1938).

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

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

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



Federal power to override decisions of the Supreme Court of Hawaii on questions of local law isnot to be exercised in doubtful cases, but in cases of manifest error only. Hawaii Consol. Ry. v.Borthwick, 105 F.2d 286 (9th Cir. 1939).

Laws of United States relating to removal of causes and other matters and proceedings as

between the federal courts and the courts of the several states shall govern in such matters andproceedings as between the federal courts and the courts of the Territory. Yeung v. Territory of Haw., 132 F.2d 374 (9th Cir. 1942).

Special finding of facts required for review. - Where there was no special finding of facts, thecourt's review was limited to rulings on the pleadings and to those rulings in the progress of thetrial which were excepted to at the time and were duly presented by the bill of exceptions, asrequired by statute. United States v. Shingle, 91 F.2d 85 (9th Cir.), cert. denied, 302 U.S. 746, 58S. Ct. 264, 82 L. Ed. 577 (1937).

Bankruptcy Act should be liberally construed in favor of right of discharge. Bockus v.

Yuen, 29 F.2d 205 (9th Cir. 1928).

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

Action at law tried by court without written waiver of jury. - If an action at law is tried bythe court without the written waiver of a jury, the jurisdiction of the appellate court to review the

judgment is limited to the process, pleadings, and judgment. This latter proposition is too firmlyestablished to require citation of authority. United States v. Yamoto, 50 F.2d 599 (9th Cir. 1931).

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

Appeals from judgments against two or more parties must be dismissed unless all parties

are joined. - Appeals from judgments against two or more parties, joint in form, must bedismissed unless all parties against whom the judgment was entered join in the appeal, or unlessthere is a summons and severance, and in determining the nature of the judgment the court willnot look beyond the face of the record. Hudson v. Pacific Trust Co., 93 F.2d 821 (9th Cir. 1937).

It is fundamental that appellant must either have or represent an interest in the subject-

matter of the appeal, and it is generally held that where it does not appear that the administratorhas an interest in a controversy and he is the only party asking a review of the judgment, theappeal should be dismissed. King v. Buttolph, 30 F.2d 769 (9th Cir. 1929).



Rulings not incorporated in bill of exceptions not considered by court. - The case transcriptincorporated many matters which were not included in the bill of exceptions and were notproperly a part of the record. That portion of the record purported to contain proceedings had incourt, the rulings of the court thereon, and an order allowing an exception thereto. But the formalallowance of exceptions in this fashion was not the equivalent of a bill of exceptions.

Consequently, those rulings, except insofar as they were incorporated in the bill of exceptions,could not be considered by the court. Lau Lee v. United States, 67 F.2d 156 (9th Cir. 1933).

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

LEGAL PERIODICALS

Hawaii Bar Journal.

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

87. Internal-revenue district.

That the Territory of Hawaii shall constitute a district for the collection of internal revenue of theUnited States, with a collector, whose office shall be at Honolulu, and deputy collectors at suchother places in the several islands as the secretary of the Treasury shall direct.

88. Customs district.

That the Territory of Hawaii shall comprise a customs district of the United States, with ports of entry and delivery at Honolulu, Hilo, Mahukona and Kahului.

Cross References. - See also §§ 93 and 98 of the Organic Act. In addition, see ChronologicalNote of Acts Affecting Hawaii for other legislation by Congress relating to customs and kindredsubjects, and note to Joint Resolution of annexation, as to customs duties between annexationand the establishment of Territorial government in RLH 1955.

ARTICLE 6. Miscellaneous.

89. Wharves and Landings.

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

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



Historical note. - The Act of December 22, 1942, c. 803, 56 Stat. 1071, authorizes federaldepartments and agencies to pay the Territory "the reasonable value, as determined by thedepartment or agency concerned," of the use of such property, notwithstanding this section,during the period from Jan. 1, 1942, until six months after the end of the war, unless soonerterminated by Congress.

CASE NOTES

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

90.

That Hawaiian postage stamps, postal cards, and stamped envelopes at the post-offices of theHawaiian Islands when this Act takes effect, shall not be sold, but, together with those that shallthereafter be received at such offices as herein provided, shall be canceled under the direction of

the Postmaster-General of the United States; those previously sold and uncanceled shall, if presented at such offices within six months after this Act takes effect, be received at their facevalue in exchange for postage stamps, postal cards, and stamped envelopes of the United Statesof the same aggregate face value and, so far as may be, of such denominations as desired.

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

91.

That, except as otherwise provided, the public property ceded and transferred to the United

States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh,eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of thegovernment of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, atits own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii. And any suchpublic property so taken for the uses and purposes of the United States may be restored to itsprevious status by direction of the President; and the title to any such public property in thepossession and use of the Territory for the purposes of water, sewer, electric, and other publicworks, penal, charitable, scientific, and educational institutions, cemeteries, hospitals, parks,highways, wharves, landings, harbor improvements, public buildings, or other public purposes,or required for any such purposes, may be transferred to the Territory by direction of thePresident, and the title to any property so transferred to the Territory may thereafter betransferred to any city, county, or other political subdivision thereof, or the University of Hawaiiby direction of the governor when thereunto authorized by the legislature; Provided, That whenany such public property so taken for the uses and purposes of the United States, if instead of being used for public purpose, is thereafter by the United States leased, rented, or granted uponrevocable permits to private parties, the rentals or consideration shall be covered into the treasuryof the Territory of Hawaii for the use and benefit of the purposes named in this section.



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

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

See the Joint Resolution of Annexation and the note thereto, in regard to ceded public lands, atRLH 1955, page 13. See Chronological Note of Acts Affecting Hawaii for Acts of Congress,presidential proclamations, and executive orders, at RLH 1955, page 9. For transfers made by thegovernor, see notes to this section in R.L. 1925 and R.L. 1935 and the records of thecommissioner of public lands.

Under the original section, the Territory could not sell ceded movable property, but previoussales were ratified and further sales authorized by an Act of May 26, 1906, 34 Stat. 204.

Cross References. - See § 73(q) of the Organic Act as to further power of the governor to set

land aside for use of United States. As to definition of "public lands," see § 171-2.

CASE NOTES

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

Purpose. - It was the purpose of Congress, as expressed in the Organic Act, to leave the cededpublic lands in the control of the Territory to be administered by it for the benefit of its people.

There is in this benign program no proper place for advantaging the United States at the expenseof the inhabitants on grounds which, though having the semblance of legality, affront the senseof justice. United States v. Fullard-Leo, 156 F.2d 756 (9th Cir. 1946), aff'd, 331 U.S. 256, 67 S.Ct. 1287, 91 L. Ed. 1474 (1946).

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

Compensation. - The taking of public land under authority of this section is not subject to the

condition that compensation be paid, as in condemnation, for the unexpired portion of a termlease. United States v. Marks, 187 F.2d 724 (9th Cir.), cert. denied, 342 U.S. 823, 72 S. Ct. 42,96 L. Ed. 622 (1951).

Land court decree conclusive upon United States. - Because full authority with respect to theadministration, management, and disposition of Hawaii's public lands had been committed toHawaii by Congress by the terms of this section and § 73 of the Organic Act, a land court decree



was conclusive upon the United States. Sotomura v. County of Haw., 402 F. Supp. 95 (D. Haw.1975).

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

as state. United States v. Marks, 187 F.2d 724 (9th Cir.), cert. denied, 342 U.S. 823, 72 S. Ct.

42, 96 L. Ed. 622 (1951).

All of Kahoolawe Island, except for lighthouse portion, was under federal government control, as provided by a series of documents, including the Annexation Joint Resolution of 1898, the 1900 Organic Act, the 1959 Admission Act, and the Land Conveyance Act of 1963.Further, the Annexation Joint Resolution and the Organic Act were not invalid because theywere made, as claimed by the defendants, who had been indicted for illegal trespass upon amilitary reservation, by illegal revolutionaries. United States v. Mowat, 582 F.2d 1194 (9th Cir.),cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 436 (1978).

Jurisdiction of offense committed on naval reservation. - The district court has jurisdiction of

an assault and battery committed by a commander of the United States Navy on the navalreservation in Honolulu. Territory v. Carter, 19 Haw. 198 (1908).

Maintenance of naval reservation would support conviction of illegal trespass. - Even if theNavy did not possess a fee simple absolute title to the Island of Kahoolawe, the maintenance of anaval reservation there sufficed to support convictions under 18 U.S.C. § 1382 for illegaltrespass. United States v. Mowat, 582 F.2d 1194 (9th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct.458, 58 L. Ed. 436 (1978).

Cited in Territory of Haw. v. Supervisors of Oahu, 15 Haw. 365 (1904); Territory of Haw. exrel. Andrews v. Puahi, 18 Haw. 649 (1908); Wynne v. United States, 217 U.S. 234, 30 S. Ct.

447, 54 L. Ed. 748 (1910); United States v. Fullard-Leo, 66 F. Supp. 782 (D. Haw. 1944); CivilAeronautics Bd. v. Island Airlines, 235 F. Supp. 990 (D. Haw. 1964); Robinson v. Ariyoshi, 441F. Supp. 559 (D. Haw. 1977); Trustees of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154,737 P.2d 446 (1987); Hawaii ex rel. Att'y Gen. ex rel. Dep't of Hawaiian Home Lands v. UnitedStates, 676 F. Supp. 1024 (D. Haw. 1988).

LEGAL PERIODICALS

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

Comment, State-Federal Jurisdictional Conflict over the Internal Waters and Submerged Landsof the Northwestern Hawaiian Islands, 4 U. Haw. L. Rev. 139 (1982).

92. Salaries, certain officers.

That the following officers shall receive the following annual salaries, to be paid by the UnitedStates: The governor, $15,000; the secretary of the Territory, $5,400; the chief justice of theSupreme Court of the Territory, $10,500; the associate judges of the Supreme Court, $10,000



each; the judges of the Circuit Court for the First Circuit of the Territory of Hawaii the sum of $7,500 and, to each of the judges of the Second, Third, Fourth and Fifth Circuits of the Territoryof Hawaii the sum of $7,000. The governor shall receive annually from the United States, inaddition to his salary, (1) the sum of $1,000 for stationery, postage, and incidentals, and (2) histraveling expenses while absent from the capital on official business. The governor is authorized

to employ a private secretary who shall receive an annual salary of $3,000 to be paid by theUnited States.

[Am May 27, 1910, c 258, § 8, 36 Stat 448; July 9, 1921, c 42, § 314, 42 Stat 120; May 29, 1928,c 904, §§ 1, 2, 45 Stat 997; Oct. 15, 1949, c 695, § 5(a), 63 Stat 880; rep March 18, 1959, Pub L86-3, § 14(e), 73 Stat 4]

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

93. Imports from Hawaii into the United States.

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

94. Investigation of fisheries.

That the Commissioner of Fish and Fisheries of the United States is empowered and required toexamine into the entire subject of fisheries and the laws relating to the fishing rights in the

Territory of Hawaii, and report to the President touching the same, and to recommend suchchanges in said laws as he shall see fit.

CASE NOTES

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

95. Repeal of laws conferring exclusive fishing rights.

That all laws of the Republic of Hawaii which confer exclusive fishing rights upon any person orpersons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawaii not

included in any fish pond or artificial inclosure shall be free to all citizens of the United States,subject, however, to vested rights; but no such vested rights shall be valid after three years fromthe taking effect of this Act unless established as hereinafter provided.

CASE NOTES



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

The provisions of § 96 of the Organic Act requiring claimants to vested fishing rights,

preliminary to the institution by the Territory of condemnation proceedings, to establish theirrights in the manner therein provided, upon penalty, under the provisions of this section, of suchrights becoming invalid in case of default, are reasonable and conform with due process. Bishopv. Mahiko, 35 Haw. 608 (1940).

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

The language of this section is entirely unambiguous. There can be no doubt that its intentwas to repeal all laws of Hawaii which conferred exclusive fishing rights, and that vested rightswere not to be excepted or protected unless established judicially by proceedings institutedwithin two years from the date of the Organic Act. State v. Hawaiian Dredging Co., 48 Haw.152, 397 P.2d 593 (1964).

Fisheries as free to noncitizen residents. - The Organic Act declared certain sea fisheries,which had previously been free to citizens and residents alike, to be free to citizens of the UnitedStates. Without further enactment or authoritative notice to the contrary, such fisheries remainfree to noncitizen residents as well as to citizens. Matsuno v. The Am. Schooner Concord, 3

U.S.D.C. Haw. 227 (1907).

The police power of the territory with reference to the public fisheries was not restricted by

this section so as to prevent the enactment of general laws respecting the means or methods bywhich fish may be taken and forbidding the use of certain kinds of nets. Territory of Haw. v.Moke Makaiwi, 21 Haw. 631 (1913), appeal dismissed, 238 U.S. 646, 35 S. Ct. 793, 59 L. Ed.1503 (1914).

Continuation of vested rights. - Such private rights of exclusive fishery in the sea as werevested rights at the time of passage of the Organic Act were not affected by the passage of thatact, and continue as rights of property, notwithstanding the repealing words of this section. Suchrights will remain rights of property until they may be destroyed by condemnation and thepayment of value. In re Fukunaga, 16 Haw. 306 (1904).

Fishing rights of persons becoming tenants after passage of Act not vested. - Within themeaning of this section, fishing rights were not vested rights in the case of persons who did notbecome tenants of any land until after April 30, 1900, the date of the passage of the Organic Act.Damon v. Tsutsui, 31 Haw. 678 (1930).



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

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

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

Former provision repealed by section. - Former penal provision, insofar as it provided apenalty for willfully depriving a Konohiki of his fishing rights by appropriating the tabooed fishof said Konohiki, or otherwise, was repealed by this section. In re Fukunaga, 16 Haw. 306(1904).

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

A statute having for its object the protection of amaama, a valuable food fish, and providing

to that end a reasonable closed season, is a legitimate exercise of the police power, and withinthe grant of legislative power contained in § 55 of the Organic Act, and does not conflict in anyway with the declaration contained in this section. Territory v. Hoy Chong, 21 Haw. 39 (1912).

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

Private nature of fish ponds. - The Organic Act of 1900, following annexation, repealed allprior laws conferring private rights in seawater fisheries (subject to vested rights), butspecifically exempted fish ponds from its scope; a similar provision appears in the HawaiiConstitution. Opinions since annexation and statehood confirm the private nature of fish ponds inHawaii. United States v. Kaiser Aetna, 408 F. Supp. 42 (D. Haw. 1976), aff'd, 444 U.S. 164, 100S. Ct. 383, 62 L. Ed. 2d 300 (1978), rev'd on other grounds, 584 F.2d 378 (9th Cir. 1979).

Imposition of public navigation servitude on privately constructed waterway. - Private"fast" lands and waters, such as fish ponds, when made navigable by improvements, or whichcould be made navigable, are subject to congressional regulation. Nevertheless, while Congress



may provide for the improvement and regulation of navigation, and take necessary action toprevent interference or obstruction to navigation, it cannot impose a public navigation servitudeupon such a privately constructed waterway without paying a reasonable compensation for theuse thereof. United States v. Kaiser Aetna, 408 F. Supp. 42 (D. Haw. 1976), aff'd, 444 U.S. 164,100 S. Ct. 383, 62 L. Ed. 2d 300 (1978), rev'd on other grounds, 584 F.2d 378 (9th Cir. 1979).

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

LEGAL PERIODICALS

Hawaii Bar Journal.

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

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

96. Proceedings for opening fisheries to citizens.

That any person who claims a private right to any such fishery shall, within two years after thetaking effect of this Act, file his petition in a circuit court of the Territory of Hawaii, setting forthhis claim to such fishing right, service of which petition shall be made upon the attorney-general,who shall conduct the case for the Territory, and such case shall be conducted as an ordinaryaction at law. That if such fishing right be established the attorney-general of the Territory of Hawaii may proceed, in such manner as may be provided by law for the condemnation of property for public use, to condemn such private right of fishing to the use of the citizens of theUnited States upon making just compensation, which compensation, when lawfully ascertained,

shall be paid out of any money in the treasury of the Territory of Hawaii not otherwiseappropriated.

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

CASE NOTES

Constitutionality. - The provisions of this section requiring claimants to vested fishing rights,preliminary to the institution by the Territory of condemnation proceedings, to establish theirrights in the manner therein provided, upon penalty, under the provisions of § 95 of the OrganicAct, of such rights becoming invalid in case of default, are reasonable and constitute due process.

Bishop v. Mahiko, 35 Haw. 608 (1940).

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

Legislative intent. - Congress intended to do away with all fisheries in the sea waters of theTerritory belonging to private individuals and not included in any fish pond or artificial inclosure



and to provide for the condemnation of such of them as were vested rights. Kapiolani Estate, Ltd.v. Territory of Haw., 18 Haw. 460 (1907).

The intent of the Congress in enacting this section and § 95 of the Organic Act was to destroy, sofar as it was in its power to do so, all private rights of fisheries, and to throw open the fisheries to

the people. It would be contrary to that intent to hold that an owner of vested fishing rights wasnot required to register his own rights, but could rely upon and be protected by the registrationeffected by another person claiming adversely to him. State v. Hawaiian Dredging Co., 48 Haw.152, 397 P.2d 593 (1964).

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

The provisions of this section constitute an enabling act, empowering the Territory of Hawaii,in its capacity as agent of the United States, to exercise, in conjunction with local law pertainingthereto, the power of eminent domain possessed by it, and pursuant thereto to acquire by

condemnation all private fishing rights within the Territory, for the declared purpose of makingall fisheries in the sea waters of the Territory free to the citizens of the United States. Bishop v.Mahiko, 35 Haw. 608 (1940).

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

The procedure prescribed by this section must be considered as a whole. The provisions of the section requiring establishment of private fishing rights and those authorizing theiracquisition by condemnation are not independent or unrelated, but parts of a single statutoryproceeding in eminent domain, the initial step of which was the establishment of private fisheriesbefore an appropriate tribunal, followed by condemnation, making just compensation whenlawfully ascertained. Bishop v. Mahiko, 35 Haw. 608 (1940).

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

This section conferred jurisdiction on the circuit court to hear the initial step in each proceeding,that is, the establishment of ownership of the fishing rights and of the boundaries of the fishery;no general jurisdiction was conferred upon the circuit court thereby. Furthermore, actions underthis section to establish fishing rights were not actions to quiet title. Consequently, the circuit



court was restricted to the exercise of that special statutory jurisdiction, which did not includepower to adjudicate title to the submerged land in question. State v. Hawaiian Dredging Co., 48Haw. 152, 397 P.2d 593 (1964).

Konohiki fishing rights are not only subjects of lease, but are in character legal rights of ancient

origin, having survived the operation of § 95 of the Organic Act as established vested rightsunder proceedings provided by this section and recognized as such by § 187A-23. Coney v.Lihue Plantation Co., 39 Haw. 129 (1951).

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

LEGAL PERIODICALS

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

97. Quarantine.

The health laws of the government of Hawaii relating to the harbor of Honolulu and otherharbors and inlets from the sea and to the internal control of the health of the islands shall remainin the jurisdiction of the government of the Territory of Hawaii, subject to the quarantine laws

and regulations of the United States.

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

CASE NOTES

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

98.

That all vessels carrying Hawaiian registers on the twelfth day of August, eighteen hundred andninety-eight, and which were owned bona fide by citizens of the United States, or the citizens of Hawaii, together with the following-named vessels claiming Hawaiian register, Star of France,Euterpe, Star of Russia, Falls of Clyde, and Willscott, shall be entitled to be registered asAmerican vessels, with the benefits and privileges appertaining thereto, and the coasting tradebetween the islands aforesaid and any other portion of the United States, shall be regulated inaccordance with the provisions of law applicable to such trade between any two great coastingdistricts.



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

CASE NOTES

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

99.

That the portion of the public domain heretofore known as Crown land is hereby declared tohave been, on the twelfth day of August, eighteen hundred and ninety-eight, and prior thereto,the property of the Hawaiian government, and to be free and clear from any trust of orconcerning the same, and from all claim of any nature whatsoever, upon the rents, issues, andprofits thereof. It shall be subject to alienation and other uses as may be provided by law.

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

CASE NOTES

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

100.

All records relating to naturalization, all declarations of intention to become citizens of the

United States, and all certificates of naturalization filed, recorded, or issued prior to the takingeffect of the naturalization Act of June twenty-ninth, nineteen hundred and six, in or from anycircuit court of the Territory of Hawaii, shall for all purposes be deemed to be and to have beenmade, filed, recorded, or issued by a court with jurisdiction to naturalize aliens, but shall not beby this Act further validated or legalized.

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

Historical note. - Certificates of naturalization granted by the United States District Court forHawaii between January 1, 1919, and July 1, 1922, were validated "insofar as failure of therecord to contain final order under the hand of the court is concerned" by the Act of June 29,

1938, c. 822, 52 Stat. 1249.

CASE NOTES

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



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

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

101.

That Chinese in the Hawaiian Islands when this Act takes effect may within one year thereafterobtain certificates of residence as required by "An Act to prohibit the coming of Chinese personsinto the United States," approved May fifth, eighteen hundred and ninety-two, as amended by anAct approved November third, eighteen hundred and ninety-three, entitled "An Act to amend anAct entitled 'An Act to prohibit the coming of Chinese persons into the United States,' approvedMay fifth, eighteen hundred and ninety-two," and until the expiration of said year shall not bedeemed to be unlawfully in the United States if found therein without such certificates: Provided,however, That no Chinese laborer, whether he shall hold such certificate or not, shall be allowed

to enter any State, Territory, or District of the United States from the Hawaiian Islands.

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

102.

That the laws of Hawaii relating to the establishment and conduct of any postal savings bank orinstitution are hereby abolished. And the Secretary of the Treasury in the execution of theagreement of the United States as expressed in an Act entitled "Joint resolution to provide forannexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundredand ninety-eight, shall pay the amounts on deposit in the Hawaiian Postal Savings Bank to the

persons entitled thereto, according to their respective rights, and he shall make all needful orders,rules, and regulations for paying such persons and for notifying such persons to present theirdemands for payment. So much money as is necessary to pay said demands is herebyappropriated out of any money in the Treasury not otherwise appropriated, to be available on andafter the first day of July, nineteen hundred, when such payments shall begin, and none of saiddemands shall bear interest after said date, and no deposit shall be made in said bank after saiddate. Said demands of such persons shall be certified to by the chief executive of Hawaii as beinggenuine and due to the persons presenting the same, and his certificate shall be sealed with theofficial seal of the Territory, and countersigned by its secretary, and shall be approved by theSecretary of the Interior, who shall draw his warrant for the amount due upon the Treasurer of the United States, and when the same are so paid no further liabilities shall exist in respect of thesame against the governments of the United States or of Hawaii.

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

CASE NOTES




103.

That any money of the Hawaiian Postal Savings Bank that shall remain unpaid to the personsentitled thereto on the first day of July, nineteen hundred and one, and any assets of said bank shall be turned over by the government of Hawaii to the Treasurer of the United States, and the

Secretary of the Treasury shall cause an account to be stated, as of said date, between suchgovernment of Hawaii and the United States in respect to said Hawaiian Postal Savings Bank.

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

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

CASE NOTES


§ 104.

This Act shall take effect forty-five days from and after the date of the approval thereof,excepting only as to section fifty-two, relating to appropriations, which shall take effect uponsuch approval.

CASE NOTES


§ 105.

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

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

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

§ 106.

The board of harbor commissioners of the Territory of Hawaii shall have and exercise all thepowers and shall perform all the duties which may lawfully be exercised by or under theTerritory of Hawaii relative to the control and management of the shores, shore waters, navigablestreams, harbors, harbor and water-front improvements, ports, docks, wharves, quays, bulkheads,and landings belonging to or controlled by the Territory, and the shipping using the same, and



shall have the authority to use and permit and regulate the use of the wharves, piers, bulkheads,quays, and landings belonging to or controlled by the Territory for receiving or dischargingpassengers and for loading and landing merchandise, with a right to collect wharfage anddemurrage thereon or therefor, and, subject to all applicable provisions of law, to fix and regulatefrom time to time rates for services rendered in mooring vessels, charges for the use of moorings

belonging to or controlled by the Territory, rates or charges for the services of pilots, wharfage,or demurrage, rents or charges for warehouses or warehouse space, for office or office space, forstorage of freight, goods, wares and merchandise, for storage space for the use of donkeyengines, derricks, or other equipment belonging to the Territory, under the control of the board,and to make other charges, including toll or tonnage charges on freight passing over or acrosswharves, docks, quays, bulkheads, or landings. The Board shall likewise have power to appoint,subject to the Territorial laws of Hawaii relating to the civil service of Hawaii, clerks,wharfingers, and their assistants, pilots and pilot-boat crews, and such other officers andemployees as may be necessary; to make rules and regulations pursuant to this section and notinconsistent with law; and generally shall have all powers necessary to carry out the provisionsof this section. All officers and employees appointed pursuant to this section shall be subject to

the Territorial laws of Hawaii relating to the civil service of Hawaii.

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

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

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

Historical note. - This board was created by an act of the territorial legislature in 1911. See §266-1. This act, as amended, was ratified by Congress by the Act of March 28, 1916, 39 Stat. 39.As to the origin of this section, see S. Con. R. 11, Senate Journal, 1919, p. 1027, and H.R. 7632,introduced in Congress July 21, 1919, Cong. Rec. v. 58, pt. 3, p. 2977, but not passed.

CASE NOTES

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

Liability of company obtaining filling material from ocean. - In a wrongful death action, itwas alleged that a dredging company had failed to maintain suitable and efficacious means toprevent people from falling into a completed, excavated channel. The excavation was made inpursuance of a clause of a contract which authorized the company, under certain conditions, toobtain filling material from the ocean, but the right of the company to occupy a part of the oceanfor the purpose of obtaining filling material could only be exercised by the permission of the



board of harbor commissioners and federal engineers. Since when the purpose of such occupancywas accomplished the company not only was under no duty to erect barriers or provide othermeans of preventing people from falling into the excavation, but it was entirely without authorityto do so, the complaint stated no cause of action against the company. Brown v. Bigelow, 30Haw. 132 (1927).

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

§ 107.

That this Act may be cited as the "Hawaiian Organic Act."

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

Historical note. - The act of July 9, 1921, 42 Stat. c. 42, contains four titles. Title 2, comprising

§§ 201-223, is the Hawaiian Homes Commission Act, 1920. Title 3, comprising §§ 301-315,consists of amendments of the Organic Act. Title 1, comprising §§ 1-2, and Title 4, comprising§§ 401-402, are as follows:

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

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

"Section 401. All Acts or parts of Acts, either of the Congress of the United States or of the

Territory of Hawaii, to the extent that they are inconsistent with the provisions of this Act, arehereby repealed.

"Section 402. If any provision of this Act, or the application of such provision to certaincircumstances, is held unconstitutional, the remainder of the Act and the application of suchprovision to circumstances other than those as to which it is held unconstitutional shall not beheld invalidated thereby." Site hosted by MauiMacMedic.com

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