Territory of Hawaii ex rel. County of Oahu v. Whitney

OPINION OF THE COURT BY FREAR, C.J. This is an application for a writ of mandamus to compel the respondent as district magistrate of Honolulu, one of the judicial districts within the county of Oahu, to issue a warrant for the arrest of each of five named persons upon a sworn complaint charging them with a violation of an ordinance made by the board of supervisors of the county of Oahu prohibiting the exposure of gambling implements in a room barred so as to make it difficult of access when three or more persons are present, or the visiting of such a room so barred under such circumstances, and to take jurisdiction of such a charge, — the said respondent having refused to issue such warrant or take such jurisdiction solely on the ground that he had no jurisdiction over the subject matter of any ordinances made by said board of supervisors. The question that presents itself first is whether it is in the power of the legislature to authorize county boards of supervisors to make ordinances of the kind in question. There can be no doubt that such authority may be conferred upon cities and other municipal corporations proper. It is conceded for the purposes of this case by counsel for the respondent that such — 176 — authority may be delegated to counties also, which are generally classed as quasi municipal corporations. This, however, is by no means clear. It is not usual to give such power to counties. In a number of states in which it has been given, it has been under express constitutional provisions. See County of Los Angeles v. Eikenberry, 131 Cal. 461; State v. Forest County, 74 Wis. 610; People v. Baker 29 Barb. 81; Feek v. Township Board, 82 Mich. 399; Board of Commissioners v. Abbott, 52 Kan. 148 (34 Pac. 416). In some states the constitution grants the power directly, in others it authorizes the legislature to grant it. In either case, however, the fact that the grant is made or authorized by the constitution does not necessarily show that it could not be made by the legislature in the absence of express constitutional authorization. This is apparent when, as is the case in some states, the constitutional provision covers not only counties but also cities and other municipal corporations proper, as to which there can be no doubt of the power of the legislature irrespective of express constitutional authorization. So, when the constitutional provision itself makes the grant, it may be explained on the theory that it was deemed best not to leave discretion in the legislature to withhold the grant. In other cases the constitutional provision may have been inserted out of abundant caution. There is room for argument that such authority, in the nature of constitutional authority, is implied from the language of Section 56 of the Organic Act, which authorizes the Territorial legislature to “provide for the government” of, as well as “create counties and town and city municipalities.” We will proceed, however, as if the words first quoted from this section did not add in this respect to the powers of the legislature implied from the words last quoted. Counties doubtless have not inherent or implied power, as municipal corporations proper have, to make by-laws, but even in the case of municipal corporations proper the power to make police ordinances of the kind in question, as distinguished from mere by-laws relating to the internal management of the corpor — 177 — ation itself, is held to be an additional power — to be conferred by express or implied grant, and not implied from the mere-character of the municipal body as a corporation proper. Commonwealth v. Bennett, 108 Mass. 27; Paul v. Gloucester Co., 50 N. J. L. 585, 600; Commonwealth v. Turner, 1 Cush. 493. No case has come to our attention which holds that the legislature may not without express constitutional authorization empower a county to make ordinances. The difficulty arises not so much from decisions against the proposition as from lack of* decisions in support of it and the uncertainty as to the precise reasoning upon which the question should be decided. There are indeed general expressions in both text books and decisions-to the effect that power to make ordinances may be delegated to-“other municipal corporations” or “quasi corporations” as well as to cities and towns, and also decisions that seem to take it. for granted that such power may be so conferred. See Ingersoll,, Pub. Corp., Sec. 19; HcQuillin, Mun. Ord., Secs. 38, 90; Commonwealth v. Turner, 1 Cush. 493; State v. Noyes, 30 N. H. 279; Haigh v. Bell, 41 W. Va. 19 (31 L. R. A. 131; Forsyth v. City of Hammond, 71 Fed. 443. For instance, in Dunn v. Wilcox Co., 85 Ala. 144 (4 So. 661), the court, referring to-a particular provision in the constitution, said: “It was not. intended to prohibit the delegation to counties of the quasi legislative powers commonly exercised by them as government or auxiliary agents of the state, and for local purposes. ^ '* This would defeat, rather than promote, that peculiarly American feature of Eepublican government, which is one of decentralization, The primary and vital idea of which is that local, affairs shall be managed by local authorities.’ ” This brings us to the question of the principles upon which? the question should be solved. It is a fundamental rule- that delegated power cannot be delegated. This applies to legislatures as well as to other bodies. Legislative power delegated, to legislatures cannot be delegated to other persons or bodies. There is, however, an exception to this maxim as well established as the maxim itself. This exception arises by implica — 178 — lion from the immemorial practice which has recognized, the propriety of vesting in municipal organizations certain powers of local regulation over matters in which the persons within 'such organizations are especially interested and in regard to 'which they are supposed to be especially competent to judge. Cooley, Const. Lim., 7th Ed., 156, 264; 1 Dillon, Mun. Corp., Sec. 308; State v. Carpenter, 60 Conn. 97. The implication is that in delegating to legislatures the legislative power the people could not have intended to prevent the further delegation by the legislatures of certain police and other powers of a local nature which had always been exercised by municipal corporations and the exercise of which by the local communities ..acting through such corporations has been regarded as one of 'the fundamental features of the American and English systerns of government. The question is, how far does this excep- ■ tion extend ? Does it extend to quasi corporations such as coun- " ties, which usually have not exercised such powers, as well as to •■■corporations proper such as cities, which usually have exer- • cised such powers % The only case so far as we are aware in "which this question is directly or adequately considered is that of Paul v. Gloucester County, supra. One of the questions in That case was whether a provision in a liquor act that the act ■ should operate or not in any particular county according to a ' vote of the majority of the legal voters in such county, was ' valid. The court, fifteen judges sitting, held, eight to seven, - that it was valid. Lengthy and powerful opinions were given • on each side. Several questions were discussed more or less '.related to the question now before us besides the particular quesTion now presented. Among these was that of the contingent 'theory of legislation, under which legislation is held permis-.sible if it is complete in praesenti though not to take effect f except upon the happening of a future event the determination • as1 to the happening of which is left to some other body than the .legislature; but if the contingent event is to be the vote of the ■people of the state, the legislation is not permissible, for that would rin effect be to delegate to the people the very question, — 179 — namely, that of the expediency of the law, upon which the legislature itself should pass. Another question discussed was whether the legislature could properly provide that the act should or should not take effect in any particular locality according to the vote of the people in that locality. This is substantially the question whether the legislature may delegate to the people of a particular locality such powers of legislation as it may delegate to municipal corporations proper under the well ■established exception above referred to, for it would seem that if the legislature may delegate the power to make ordinances of a local nature to the people of a particular locality it may also delegate to the same people the power to decide whether the law enacted by the legislature itself should operate in that locality. Upon this question courts are divided. For cases holding that legislative power may be so delegated, see McQuillin, Mun. Ord., Sec. 426. The majority and minority opinions then 2U’oceeded to discuss the question whether the delegation of such authority was valid if the locality, to the people of Avhich the vote was referred, was a county, that is, an established quasi municipal corporation. The majority of the court apparently proceeded on the theory that the delegation was practically to the county, and undertook at considerable length to show that the power to delegate depended not upon the name or extent or character of the political subdivision of the state to which the power was delegated but upon the character of the grant. If the grant was of a power to enact general legislation it was void, but if it was restricted to such powers, in the nature of police powers, as were necessary to local government, it was valid. The minority took the view that the delegation of power in that instance was not to the county but to the people within a certain area, and that it was immaterial that such area happened to be a county. It did not doubt the ability of the legislature to create" municipal corporations or to invest the people within any territorial limits, whether the limits were coincident with those of a county or not, with corporate functions, or to ■confer upon such corporate organizations the right to exercise — 180 — police power, including the entire control and regulation of the sale of spirituous and malt liquors, but it denied that a mere attempted grant of legislative power to the people within a certain area would invest such people with corporate functions. It did not deny the authority of the legislature to confer police power upon a county possessing corporate functions, although it pointed out the ordinary distinction between the functions of a county organized to assist in the administration of the general laws of the state and a municipal corporation proper organized for local and police purposes. The majority opinion was followed without dissent by the court, eleven judges sitting, in Noonan v. County of Hudson, 52 N. J. L. 398, under an act authorizing county boards to construct public roads through counties and to submit the question whether such roads should be constructed to the electors of the counties. The county act now in question provides, in subdivisions 1 and 8 of Section 9 (Laws of 1905, Act 39), “that each county shall be a body corporate and politic” and is subject to “sue and be sued in its corporate name.” It confers upon counties various corporate functions. The act 'as a whole was passed for the purpose of establishing, as far as it went, local government, although theoretically the counties established by the act may properly be considered as quasi corporations rather than municipal corporations proper.' The act 'also confers upon the boards of supervisors certain legislative powers other than that now in question, as, for instance, (Sec. 62, Subd. 1), “to fix the salaries of all county officers, not herein otherwise provided for.” This is a delegation of power which is generally held valid elsewhere except when expressly prohibited by constitutional provision. The case of a territory of the United States is somewhat analogous. The rule that delegated power cannot be delegated applies to Congress as well as other legislative bodies, as has been held repeatedly. Territories, moreover, are not municipal corporations proper, but, as was said in National Bank v. County of Yorktown, 101 U. S. 129, “their relation to the gen — 181 — •eral government is much the same as that which counties bear to the respective states,” and yet it cannot be doubted that Congress may delegate legislative powers to territories. See also Coffield v. Territory, 13 Haw. 478. On the whole we are of the opinion that the legislature could delegate to the county boards of supervisors power to make ordinances relating to certain matters of local concern. Power has been conferred expressly by the county act (Sec. 62, Subd. 5) upon the board of supervisors of each-county, “5. To regulate by ordinance within the limits of the county, all local police, sanitary and other regulations not in conflict with the general laws of the Territory, or rules and regulations of the Territorial board of health, and fix a penalty for the violation of' such ordinances.” This is sufficient authority for the enactment of an ordinance of the kind in question. Gambling is one of the subjects as to which power to make ordinances may be delegated. See State v. Carpenter, supra. The language of this authority is open to criticism, for in terms it is an authority to “regulate * * * regulations,” which, construed strictly, would not make good sense and would apply only to regulations already in existence, but the intention is so clear that we may well construe “regulate” as “make.” See Shillaber v. Waldo, 1 Haw. 40; Republic v. Waibel, 11 Id. 226; Hall & Son v. Dickey, 15 Id. 593; Mankichi v. Hawaii, 190 U. S. 197. Moreover, we do not understand that this statutory provision authorizes the board of supervisors to impose imprisonment as a penalty, although as to that we are not required to decide, for the ordinance, which imposes a fine not exceeding $500 or imprisonment for not more than six months or both, may stand even if the part relating to imprisonment is void. Of course the penalty, whatever its character, should be reasonable in amount, and it is usual for statutes to specify both the character and the maximum amount that may be prescribed by the ordinance. This statute does not specify either. It is generally — 182 — held that penalties, such as imprisonment and forfeiture, other than pecuniary cannot be prescribed in the absence of express, statutory authority (See McQuillin, Mun. Ord., Sec. 173; 1 Dillon, Mun. Corp., Secs. 336-338, 408-410; 1 Smith, Mun. Corp., Secs. 546, 550; Ingersoll, Pub. Corp., Sec. 76), although it is held in some cases at least that power expressly conferred to enforce ordinances or pecuniary penalties imposed under ordinances includes power to imprison, not as a punishment, but as a means of enforcing payment of such penalties when imposed. Ex parte Green, 94 Cal. 397; Natal v. Louisiana, 139 U. S. 621. The enacting clause of the ordinance also is invalid. It reads : “The people of the county of Oahu do ordain as followsThe power to make ordinances is conferred upon the board of supervisors and not upon the people of the county. But this does not invalidate the ordinance, for it did not have to contain any enacting clause, and the petition and return show that it was •in fact made by the board of supervisors. The next question is whether the proceeding to enforce the ordinance is civil or criminal and within the jurisdiction of a district magistrate. The respondent contends that the proceeding is civil, that the county act doe's not confer jurisdiction of cases under county ordinances upon district courts, that the jurisdiction of such courts, of inferior and limited jurisdiction, should be strictly construed and that the board of supervisors could not either create a court or confer jurisdiction upon one or make an act a misdemeanor. The ordinance in question purports to make a violation of it a misdemeanor and to confer jurisdiction of offenses arising under it upon all district magistrates within the county. We will assume that these portions of the ordinance are void or surplusage, as they doubtless are. The question is whether a violation of the ordinance is a criminal offense and whether jurisdiction over it has been conferred upon the respondent, not by the ordinance itself, but by the-laws of the Territory, including the county act. Whether violations of municipal ordinances are of a criminal or civil nature, — 183 — is a question upon which the courts are very much divided.. Some courts hold that they are criminal; others, that they are-civil; others, that they are civil or criminal according to their nature, and still others, that although they are civil the procedure should be stricter than in ordinary civil cases. See Ingersoll, Pub. Corp., Sec. 77; 1 Dillon, Mun. Corp., Sec. 411; 1 Smith, Mun. Corp., Sec. 554; McQuillin, Mun. Ord., Sec. 304; 15 Enc. Pl.& Pr. 412 et seq. Whether they should be-regarded as civil or criminal depends much upon the language-of the statute taken as a whole and to some extent upon the-nature of the act charged. So far as its nature is concerned,, the act in the present case would naturally be the subject of a criminal statute. If in addition to this the language of the provision already quoted is not sufficient — from the natural meaning of the word penalty and the nature of the subjects in regard to which ordinances may be made — we think that there is sufficient in the first subdivision of section 90 of the county act, which provides that, “The county attorney is the public prosecutor for the county in which he shall have been elected and he, or his deputy shall: “1. Attend the circuit court in and for said county and conduct on- behalf of the people all prosecutions therein for offenses-against the laws of the Territory of Hawaii and the ordinaneesof the board of supervisors of the county.” This shows an intention on the part of the legislature that' at least some violations of some ordinances of boards of supervisors were to be offenses to be jmosecuted as such by the public-prosecutor and on behalf of the people, in other words, that they were to be considered criminal or public offenses. If any such violations are to be regarded as such offenses, those now in.question are certainly among them. Moreover, offenses against' ordinances are classed with offenses against laws, as if both were: of the same character. If, as we hold, the violation of this ordinance is a criminal offense it would be within the jurisdiction of a district magistrate under Sec. 1664 of the Pevised Laws, which provides that; — 184 — ■such magistrates shall have jurisdiction of “criminal offenses punishable by fine or by imprisonment not exceeding one year * * whether with or without fine.” The county act having made no provision for local or special courts to try cases arising under county ordinances the implication is that, to avoid the absurdity of rendering all such ordinances nugatory, such eases were intended to be tried by the appropriate Territorial courts. Ingersoll, Pub. Corp., Sec. 77, p. 252; 1 Smith, Mun. Corp., Sec. 548, note 386; 1 Dillon, Mun. Corp., Sec. 409, note 3, the two authors last mentioned citing Columbia v. Harrison, 2 Const. (S. C.), 213. As between the circuit and district courts of the Territory, the case now in question would naturally fall within the jurisdiction of the latter. It is suggested, however, that the first subdivision of section '90 of the county act above quoted gives exclusive jurisdiction Tinder county ordinances to the circuit courts. Subdivision 3 «of the same section has some bearing upon this question. It reads thus: “3. Institute proceedings or direct the sheriff or deputies to ■do so before the magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that any such offenses have been committed; and ■for that purpose take general charge of criminal ca’ses in the district courts either in person or by the sheriff, deputy sheriff «or such other prosecuting officer as he shall appoint; attend Tipon the magistrates in case of arrest; and attend before and •give advice to the grand jury whenever cases are presented to ■them for their consideration; provided, however, thát nothing Iherein contained shall prevent the institution or conduct of •proceedings by private counsel before magistrates under the direction of the county attorney.” Eeading these subdivisions (1 and 3) together it is apparent that the circuit courts were not intended to have exclusive ■jurisdiction of offenses against ordinances. The fact that ordinances were mentioned in the first subdivision and not in the third would not show that the circuit courts were to have exclusive jurisdiction of offenses under them any more than the fact that the laws of the Territory were mentioned in the first sub — 185 — division and not in the third would show that the circuit courts were to have exclusive jurisdiction of offenses under them. Such law's and such ordinances were mentioned once, namely, in the first subdivision, and w'ere evidently intended to be implied in the subsequent subdivisions. The natural construction is that the circuit courts were intended to have jurisdiction, under both law's and ordinances, of such offenses as come within their jurisdiction under the law's defining such jurisdiction, and similarly as to district magistrates. The first subdivision does not purport to be a grant or definition of the jurisdiction of the circuit court, but is primarily a grant or definition as far as it goes of the powers and duties of the county attorney and his deputy. This accounts for the distinction between the first and third subdivisions so far as the present case is concerned and renders it unnecessary to account for such distinction on other grounds. The first subdivision was intended to apply to the county attorney and his deputy, while the third was intended to apply not only to those officers but to the sheriff and his deputies as well. Apparently it w'as the intention to prosecute the case before the district magistrate in the name of the county. In our opinion it should be prosecuted in the name of the Territory. Section 11 of the Organic Act provides that, “The style of all process in the Territorial courts, shall hereafter run in the name of ‘The Territory of Hawaii,’ and all prosecutions shall be carried on in the name and by the authority of the Territory of Hawaii.” In Brownville v. Cook, 4 Neb. 101, it was held that a somewhat similar provision applied to prosecutions under ordinances as well as to those under state laws. But the correctness of this decision has been questioned (1 Dillon, Mun. Corp., Sec. 424, note 1) and several other courts have held that provisions of this kind do not apply to prosecutions under ordinances, so as to render void statutes or ordinances that provide expressly that such prosecutions shall be in the name of the municipality, although possibly the cases which so hold are distinguishable from the present case. See Davenport v. Bird, — 186 — 35 Ia. 524; Spokane v. Robinson, 6 Wash. 547 (but see State v. Fountain, 14 Wash. 236); Ex parte Boland, 11 Tex. App. 159, and Bautsch v. Galveston, 27 Tex. App. 342 (11 S. W. 414), and similar rulings are said to have been made in Kansas, Kentucky and Mississippi. 15 Enc. Pl. & Pr. 421. In the present case there is no statute or ordinance that requires such prosecutions to be in the name of the county. In the absence of a constitutional provision or when such a provision is held not to apply it is often provided by statute or ordinance that such prosecutions shall be in the name of the municipality. Sometimes, however, it is expressly provided that they shall be in the name of the state or the people. Goddard, Petitioner, 16 Pick. 504; Pillsbury v. Brown, 47 Cal. 477; State v. Robilshek, 60 Minn. 123. In many eases, apparently in the absence of any express provision on the subject, it seems to have been taken for granted that such prosecutions when considered criminal in their nature should be in the name of the State. State v. Stearns, 31 N. H. 106; State v. Nelson, 40 Vt. 455; State v. Rowell, 97 N. C. 417; State v. Vail, 57 Ia. 104; Lynch v. Commonwealth, 35 S. W. (Ky.) 264; State v. Carpenter, supra. Perhaps the language in Snow v. U. S., 18 Wall. 317, 321, by analogy favors this, view. In some cases it is held that such prosecutions should be in the name of the state, Avhere the only statutory provision on the subject is of a general nature, to the effect that proceedings shall be the same as in other cases or that the general laws shall apply when not otherwise provided. People v. Vinton, 82 Mich. 39; Vicksburg v. Briggs, 85 Mich. 502. In Sanuta Barbara v. Sherman, 61 Cal. 57, it was held that such prosecutions should be in the name of the people from the mere fact that they were criminal in their nature. As we construe it, the county act in question contemplates that such prosecutions shall be in the name of the Territory rather than in the name of the county, and in view of the law as above set forth upon this general subject but little is required to show such an intention. Not only are violations of ordi — 187 — nances of the kind now in question criminal offenses within the jurisdiction of district magistrates, as above held, which alone might be sufficient to show that the procedure in prosecutions for them should be the same as in other criminal cases before such magistrates in the absence of any provision to the contrary, but the first subdivision of Section 90 of the act above quoted states that such prosecutions shall be conducted “on behalf of the people,” which naturally means the people of the Territory and not the people of the county, and must be construed, since it refers to laws as well as ordinances, to mean “on behalf of the Territory.” F. W. Milverton, Deputy Gounty Attorney, for petitioner. Respondent in person; W. T. Rawlins with him. Under all the circumstances shown by the petition and return, which need not be set out in full, we are of the opinion that the district magistrate should not be required to take any particular action, but that he should be required to take jurisdiction of the case and, if necessary, a writ may issue requiring him to do so.