ORG 0055 ANNOTATIONS

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

Before §55 was amended, a county could not issue bonds unless it had the power of taxation: 19 H. 9. Legislation substantially lessening the security for payment of county bonds by reducing county revenue might be invalid as an impairment of contract obligations: 19 H. 17. Limitation on indebtedness of municipality applies to indebtedness imposed by legislature on, as well as that incurred by, the municipality: 25 H. 335. Street improvement bonds to be financed by assessments not municipal "indebtedness", 33 H. 731.

For construction with reference to delegation of power, of bond statute which in terms was to take effect on the President's approval, see note to §50.

Other territories: Compare this §55 of the Org. Act 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 and were made inapplicable expressly by that amendment. See note to §56.

By this § full congressional legislative power within its terms was delegated to the territorial legislature, 54 F.2d 313. While the power of Congress to legislate for a territory, directly or through a local legislature, is derived from the Constitution (195 U.S. 140), it is derived, not from the enumerated specific powers, but from the general power to make "needful rules and regulations respecting the territory or other property belonging to the United States" or by implication from the power to acquire and hold territory and the fact that there is no other legislative power over such territory, or from both these sources (136 U.S. 42-44); (182 U.S. 290; 195 U.S. 140; 118 U.S. 380). Hence such legislative power over territories is not subject to the limitations applicable to the power of Congress over the states, except as set forth in the note to §5 of this Act, but in general is the equivalent of the combined federal and state legislative power over a state and extends to "all rightful subjects of legislation." 175 U.S. 168; 239 U.S. 365; 137 U.S. 684; 152 U.S. 48; 201 U.S. 308; 251 U.S. 406; 171 Fed. 488; 86 Fed. 456. Congress may abrogate territorial laws or legislate directly for the territories. 305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890.

Pursuant to section 73(c), certain land laws are not subject to repeal or amendment by the legislature without the approval of Congress.

By the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdiction except for certain purposes therein stated. This Act is set out following the U.S. Constitution.

As to military and naval reservations see the note to section 2. As to taxation see the following Acts of general application throughout the United States: Act of June 16, 1936 known as Hayden-Cartwright Act, c 582, §10, 49 Stat 1518, 1521, as amended October 9, 1940, c 787, §7, 54 Stat 1059, 1060, construed in 38 Ops. 519; Act of October 9, 1940, known as the Buck Act, c 787, 54 Stat 1059.

As to juries and jury trials see §83 and note.

As to application of Constitution see §5 and note. Constitutional construction adopted, if possible, 36 H. 206, 230.

The legislature has never carried out the provisions for reapportionment, but legislation is not thereby invalidated, not a justifiable question: 36 H. 32.

The provisions of this § against granting special franchises and private charters do not apply to grants of powers to municipal corporations: 19 H. 176; nor do they prevent the imposition of a license fee for fishing for profit with boats exceeding a certain width: 19 H. 643; 27 H. 7. See 40 H. 604.

Claim of special privilege through the grant of an exemption not raised by general demurrer, 33 H. 196. Through grant of certificate of public convenience and necessity, not raised where benefits of law had been accepted, 33 H. 813. Certificate of public convenience and necessity not a franchise, 34 H. 52.

On status of corporations formed before and after annexation, with reference to their being corporations organized by authority of federal laws, see note to §6.

For ratification of franchises granted between annexation and the establishment of territorial government, see §73 and note thereto. For franchises granted by the territorial legislature and approved, with amendments, by Congress, see note 3 in Appendix of RLH 1945, page 1676, and list of acts in Chronological Note of Acts Affecting Hawaii in RLH 1955, page 9. Certificate of public convenience, 34 H. 52.

As to rightful subjects of legislation and extent of the legislative power, see 23 Ops. 539, 16 H. 266; 38 H. 188, and note to §81, on judiciary. 121 Fed. 772; 13 H. 600; 14 H. 432; 1 U.S.D.C. Haw. 95; 1 U.S.D.C. Haw. 298; 21 H. 597, 600; 23 H. 64, 359; 23 H. 437; 33 H. 278, and 33 H. 731 (street improvement bonds); 28 H. 298, (special assessments); 226 U.S. 184; 54 Fed. 2d 313, cert. den. 286 U.S. 543; 130 Fed. 2d 789; 38 Ops. 519; 39 Ops. 316, on taxation, 20 H. 483; 22 H. 103, 107; 37 H. 314 aff. 174 F.2d 21; 38 H. 188, on taxation and police power. 27 Ops. 485, on special tax on incomes in excess of $4000 for assisting immigration. 26 H. 737, validity of workmen's compensation act where contract is nonmaritime although injury occurred while workman was incidentally engaged in maritime work on ship in navigable water of United States. 205 U.S. 354, and 13 H. 481, on exemption of the Territory from suit without its consent. 21 H. 222 (Ann. Cas. 1916A 1136) on validity of statute prohibiting judge from commenting on evidence, etc. 23 H. 376, 35 H. 461, 37 H. 223, 38 H. 261, provision requiring two years' residence for applicant for divorce is mandatory and jurisdictional, but member of armed forces may become domiciled; 16 H. 777, and 17 H. 174, on creation of municipal corporations. 21 H. 31; 21 H. 41 (Ann. Cas. 1915A 1155); 21 H. 631, protection of fish. 24 H. 485, power to regulate food prices belongs to Congress as a war power and not to the states or territories, but see 256 U.S. 170. 21 H. 314, 326, improvement of insanitary lands. 34 H. 52, regulation of public utilities. 33 H. 397, photography. 38 H. 310, on statehood.

The legislature cannot after a pardon refund a fine paid before the pardon, for that would be an invasion of the judicial and pardoning powers and a diversion of public funds to private uses: 20 H. 518; the appropriation of public funds to discharge a moral obligation is a rightful subject of legislation: 20 H. 600; but there is no obligation to refund license fees lawfully collected, 20 H. 600, nor part of the sale price of public land on the assumption that the appraisement was too high, 26 H. 104. Likewise as to reimbursement for improvement, after forfeiture of special homestead agreement, in excess of appraised value of improvement: 25 H. 406. Contractor's losses: 29 H. 343. Power of legislature to provide for further judicial proceedings. Pope vs. U.S. Sup. Ct. U.S. Nov. 6, 1944.

The legislature may authorize the garnishment of a legislator's salary: 19 H. 428. Street railways are subject to regulation directly by the legislature or by delegation, as to details, to administrative bodies, and perhaps, as in a state, by delegation to the courts: 211 U.S. 291.

The legislature may delegate to municipalities and local boards of health power to enact health regulations, but it cannot delegate to administrative officers the power of taxation, e.g. the power to fix sewer rates: 20 H. 411.

The absence of legislation for licenses to clubs to sell liquor is no defense for a club selling without a license; 16 H. 509; nor has an ex-licensee such a vested right as will entitle him to sell his stock of liquor after the expiration of his license: 18 H. 406. Congress provided by Joint Resolution of April 26, 1910 (36 Stat 878) for a special election on prohibition, at which election the vote was against prohibition. See also the Act of May 23, 1918, c 84, 40 Stat 560, which was followed by the National Prohibition Act, made applicable to Hawaii by §3 of Act of Nov. 23, 1921, c 134, 42 Stat 223. All federal liquor prohibition laws in effect in Hawaii were repealed by the Act of Mar. 26, 1934, c 88, 48 Stat 467.

The legislature may appropriate money for a hospital conducted for indigent sick without distinction as to nationality, creed, etc.: 15 H. 663. The clause in regard to aid to sectarian schools is referred to in 17 H. 292; 19 H. 148; 206 U.S. 206, 215 U.S. 554.

Insurance statute does not supersede contract between the parties. 9 F.2d 340. Power to regulate foreign language schools is controlled by constitution, 11 F.2d 710, 273 U.S. 284. Legislative control over qualifications of physicians, 31 H. 625, aff. 52 F.2d 411.

Condemnation for irrigation project: 74 F.2d 596, cert. den. 296 U.S. 570, rev'd. on other grounds 298 U.S. 342.

Referred to in 13 H. 706; 18 H. 539, 41 H. 37, 461. See also note to §5.

Conflict of a territorial statute with an executive agreement. 41 H. 565. Action for declaratory judgment on reapportionment of legislature moot when Congress by amendment ordered reapportionment. 256 F.2d 728. See also 138 F. Supp. 220. Power to enact Fair Trade Act. 43 H. 103. On rightful subjects of legislation. 43 H. 103. Acts in discharge of a moral obligation; are rightful subjects of legislation; are not grants of special or exclusive privileges. 44 H. 100, 352 P.2d 835.