1900 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)

CHAPTER I.

GENERAL PROVISIONS

§1. Definitions.

That the phrase "the laws of Hawaii," as used in this Act without qualifying words, shall mean the constitution and laws of the Republic of Hawaii, in force on the twelfth day of August, eighteen hundred and ninety-eight, at the time of the transfer of the sovereignty of the Hawaiian Islands to the United States of America.

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

This is the Act, as since amended, of April 30, 1900, c 339, 31 Stat 141 (2 Supp. R.S. 1141), prepared and recommended by a commission appointed by the President under the Joint Resolution of Annexation of July 7, 1898, 30 Stat 750 (2 Supp. R.S. 895). The formal transfer of sovereignty under that resolution took place Aug. 12, 1898, and this Organic Act, creating the Territory, took effect June 14, 1900. See Joint Resolution, RLH 1955, page 13, with notes thereto, for application of Federal Constitution and laws to Hawaii between annexation and establishment of territorial government. For decisions under this Organic Act, see notes to sections thereof.

For note relating to act of Congress, presidential proclamations, and executive orders, see the Chronological Note, RLH 1955, page 9.

The volumes mentioned in the second paragraph of this § did not contain all the laws then in force referred to in the first paragraph, nor were all the laws therein contained then in force. The Civil Laws and Penal Laws were compilations, not enacted by the legislature. These laws were in general continued in force by Congress with certain exceptions and modifications: §§6, 7, below: 23 Ops. 539; 114 Fed. 852, affirming 1 U.S.D.C. Haw. 75; 122 Fed. 587. Referred to in 16 H. 245; 22 H. 251. See also, as to continuation of Hawaiian laws, notes to other §§, especially §§5, 6 and 7, and to Joint Resolution of Annexation, RLH 1955, page 13.

§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.

The Hawaiian group consists of the following islands: Hawaii, Maui, Oahu, Kauai, Molokai, Lanai, Niihau, Kahoolawe, Molokini, Lehua, Kaula, Nihoa, Necker, Laysan, Gardiner, Lisiansky, Ocean, French Frigates Shoal, Palmyra, Brooks Shoal, Pearl and Hermes Reef, Gambia Shoal and Dowsett and Maro Reef. The first nineteen were listed in the Commission report transmitted to Congress by the message of the President, Senate Doc. 16, 55th Congress, 3d Session, 1898. U.S. Misc. Pub. 1898.

For history of Palmyra see 133 F.2d 743; 156 F.2d 756; 331 U.S. 256. It has been a question whether Midway was acquired by Hawaii on July 5, 1859, and so is a part of the Territory, or was acquired by the United States independently on August 28, 1867; the latter was assumed in 182 U.S. 304. See 1933 report of Hawaiian Historical Society, paper read by P. C. Morris, Dec. 14, 1933. It was assumed by Congress that Midway was not part of the Territory in the Act of August 13, 1940, c 662, 54 Stat 784, extending jurisdiction of United States District Court for Hawaii to include Midway Islands, also Wake, Johnston, Sand, and Jarvis Islands.

Territorial jurisdiction includes the military and naval reservations within the exterior boundaries of the Territory. 19 Haw. 200; 23 Haw. 61; cf 4 U.S.D.C. Haw. 62.

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 in full following the U.S. Constitution.

§3. Government of the Territory of Hawaii.

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

By this Act Hawaii acquired the status of an incorporated Territory: 182 U.S. 305; and became an integral part of the United States: 190 U.S. 197.

While a territory is not a municipality or quasimunicipality (27 Ops. 486), or a municipal corporation (18 H. 255), and is not liable as a municipal corporation for torts (13 H. 481; 14 H. 484), and sustains a relation to the Federal government analogous to that of a county to a state (17 H. 181; 101 U.S. 133), and is not a state as that term is generally used in the Constitution (258 U.S. 111) or so as to render unconstitutional the federal opium law as an invasion of the police power of the Territory (4 U.S.D.C. Haw. 202); but is a state as that term is generally used in treaties (133 U.S. 258; 182 U.S. 262, 270); it has been referred to as an inchoate state (20 Fed. 305) or as having a quasi-state government (194 U.S. 491) and is sufficiently sovereign to be exempt from suit without its consent, differing in that respect from the District of Columbia (205 U.S. 349; 13 H. 478), and so that a statute of limitations does not run against it (18 H. 252; 21 H. 600), and so as to have preference over its subjects as to claims against an insolvent estate (26 H. 688). This Territory is said to be in the position of a state as respects its courts and in all other particulars except sovereignty (4 U.S.D.C. Haw. 467, and cases there cited). Referred to in 108 Fed. 113; 23 Ops. 416; 13 H. 21.

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

§4. Citizenship.

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

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

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 Act of Sept. 22, 1922, 46 Stat 1511, women born in Hawaii prior to June 14, 1900 deemed U.S. citizens at birth. But Act of Sept. 22, 1922 was repealed by Act of Oct. 14, 1940, 54 Stat 1137, which in turn was repealed by Act of June 27, 1952, 66 Stat 166 (McCarran-Walter Act), and the present provisions are contained in 8 U.S.C.A. 1435(a).

Under Art. 17, §1, of the Const. of 1894 (adapted from the 14th Am. of the U.S. Const.) all persons born or naturalized in the Hawaiian Islands and subject to the jurisdiction of the Republic of Hawaii were citizens thereof. Between 1842 and 1892, 731 Chinese and three Japanese were naturalized in Hawaii; since 1892, none. Birth certificates by the Territory of Hawaii are not controlling, and persons applying for admission to the United States with such certificates may be detained by immigration officers for the purpose of determining citizenship, 35 Ops. 69. The secretary of Hawaii may issue to persons born in Hawaii certificates of Hawaiian birth, which are prima facie evidence: HRS §§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. A person born in the Kingdom of Hawaii of British parents domiciled there was held to be a citizen of the Republic of Hawaii although he was registered at birth at the British consulate and had never renounced allegiance to the British crown nor sworn allegiance to the Hawaiian government: 11 H. 166. On citizenship of persons born in the United States of alien parents, see 169 U.S. 649. Mere residence in foreign state after majority does not expatriate, 31 F.2d 738. But son of naturalized Hawaiian citizen became expatriated through residence in foreign country of birth. 89 F.2d 489, cert. den. 301 U.S. 682, reh'g den. 301 U.S. 713. Naturalization as Hawaiian citizen did not occur under Const. of 1894 by issuance of certificate of Minister of Interior where allegiance to native land not renounced and court order not obtained. 117 F.2d 588, reh'g den. 120 F.2d 760, aff'd by divided court, 315 U.S. 783.

Chinese who were Hawaiian citizens on Aug. 12, 1898, by either birth or naturalization, whether under the monarchy or the republic, became American citizens under this §: 23 Ops. 509; 1 U.S.D.C. Haw. 118; and their wives and children were thereafter entitled to enter the Territory; 23 Ops. 345; and such a citizen could take oath that he was such, and obtain an American register for a vessel which had a Hawaiian register on that date and was then owned and continued to be owned by a Hawaiian citizen until purchased by such Chinese; 23 Ops. 352. Son of Chinese, naturalized Hawaiian citizen, born in China in 1894 and remaining there through minority, did not become citizen and not entitled to enter U.S. 69 F.2d 681. Chinese held for deportation may set up American citizenship in habeas corpus or deportation proceedings, but the burden is on them to prove such citizenship: 1 U.S.D.C. Haw. 6; 1 U.S.D.C. Haw. 44; 1 U.S.D.C. Haw. 104; 1 U.S.D.C. Haw. 113; 1 U.S.D.C. Haw. 234; 270 Fed. 57.

Habeas corpus lies to protect immigrant's right to have question of citizenship determined; 160 Fed. 842, affirming 3 U.S.D.C. Haw. 168. See also §§100 and 101, and notes thereto; also note to Joint Resolution of Annexation, RLH 1955, page 13.

Woman of Chinese ancestry, born in Hawaii in 1894 but married to Chinese alien in 1910, could not be naturalized under the Acts cited in first paragraph of this note as they stood prior to 1940 amendment, because of her nonresidence on July 2, 1932, 88 F.2d 88.

For decisions generally on immigration and citizens see notes to §§100 and 101, and note to RLH 1955, §57-43; also, presumptions: arising from findings of Board of inquiry or certificate of identity, 29 F.2d 500; 30 F.2d 516; 49 F.2d 19 and 24; may be rebutted, 30 F.2d 65; lack of, prima facie supports right to deport, 36 F.2d 563; fraud must be alleged in complaint, 63 F.2d 375 and 377. Delay for depositions may be a matter of right, 33 F.2d 236. Proof of Chinese descent shifts burden of proof: 104 F.2d 21, 111 F.2d 707. Finding of citizenship on previous entry not binding: 124 F.2d 21; but see 188 F.2d 975.

Under the treaty with Spain and Acts of Congress, a Puerto Rican, residing in Puerto Rico on April 11, 1899, and a year thereafter, who did not declare his decision to preserve his allegiance to Spain, did not lose his political status by removing to Hawaii in 1901, but became a citizen of the United States under a subsequent Act of Congress and hence entitled to vote in Hawaii: 24 H. 21.

Although §8(a)(1) of the Act of March 24, 1934, c 84, 48 Stat 456, 462, provides that Filipinos shall be placed on the quota basis as aliens, it is specifically made inapplicable to Hawaii and immigration is determined by the Interior Dept. on basis of industrial needs.

Referred to in 13 H. 21, 556; 162 Fed. 470.

Filipino national in Hawaii became alien by proclamation of Philippine Independence, 183 F.2d 795.

§5. United States Constitution.

That the Constitution, and, except as otherwise provided, all the laws of the United States, including laws carrying general appropriations, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States; Provided, That sections 1841 to 1891, inclusive, 1910 and 1912, of the Revised Statutes, and the amendments thereto, and an act entitled "An act to prohibit the passage of local or special laws in the Territories of the United States, to limit Territorial indebtedness, and for other purposes," approved July 30, 1886, and the amendments thereto, shall not apply to Hawaii. [Am May 27, 1910, c 258, §1, 36 Stat 443; April 12, 1930, c 136, 46 Stat 160; June 6, 1932, c 209, §116(b), 47 Stat 205]

Compare U.S. Rev. Sts. §1891.

The federal Constitution and laws were first formally extended to Hawaii by this §, 190 U.S. 197. See also the note to §3. On the application of these to Hawaii after enactment of Org. Act, see, 121 Fed. 772; 13 H. 590; 1 U.S.D.C. Haw. 294; 20 H. 483; 327 U.S. 304. Construction tending toward unconstitutionality is to be avoided if possible, 62 F.2d 13; 52 F.2d 411; 36 H. 206, 230. A person not affected cannot raise invalidity: 24 H. 100; 33 H. 194; 36 H. 661, 709; 39 H. 67. Acceptance of benefits of law as estoppel of claim of invalidity: 33 H. 813. Burden is on party asserting unconstitutionality: 35 H. 855, aff'd 130 F.2d 786. Constitutional questions decided only where necessary for decision of cases: 33 H. 180; 38 H. 346; waiver: 33 H. 813. Time of raising constitutional questions: 39 H. 287.

In general, while the legislative power of Congress over a territory, whether exercised directly or through a territorial legislature, is often said to be plenary, and is not limited by such specific provisions as the apportionment clause in respect of direct taxation and the uniformity clause in respect of indirect taxation, which control legislation for national purposes, yet the power is subject to some constitutional limitations, but just what provisions of the Constitution are operative in such cases is not fully determined; inhibitions which go to the root of the power of Congress to act at all, irrespective of time or place, such as that no bill of attainder or ex post facto law or law respecting the establishment of a religion shall be passed, apply; also fundamental limitations respecting personal and property rights apply by inference and the general spirit of the Constitution rather than expressly or directly: 136 U.S. 1, 44; 182 U.S. 244, 277, 291, 294; 195 U.S. 138, 146; the trial and grand jury provisions, as well as doubtless other provisions, apply to territory incorporated but not to territory unincorporated as an integral part of the United States--the status being determined by statute or treaty: 258 U.S. 298, 304-5, 313, and cases there cited. See also 258 U.S. 101, 112. Congressional delegation of taxing power to territorial legislature, see note to §55.

Art. III, §2, or Art. I, §8, U.S. Const. not violated by workmen's compensation act as applied to injury on ship by workman under non-maritime contract, 26 H. 737.

Interstate Commerce, merchandise licenses, 13 H. 286. Not involved when Congress has validated the territorial law. 305 U.S. 306, affg. 96 F.2d 412 and 33 H. 890. Taxation by Territory of radio station not encroachment upon commerce clause, 40 H. 121, aff. 216 F.2d 700.

Art. IV, full faith and credit, 24 H. 239.

1st Amendment. Riot and unlawful assembly law, valid, 37 H. 625; questioned 82 F. Supp. 104.

4th Amendment. Searches and seizures: 20 H. 71; 22 H. 597; questioned 26 H. 336; 23 H. 250; 26 H. 331; 28 H. 173. If officer was violating 4th Amendment this would not justify homicide. 35 H. 232, aff'd 119 F.2d 936, CCA holding there was no violation of the Constitution.

5th Amendment. Applies to Territory. 273 U.S. 284; 28 H. 43; 28 H. 88. (See, 30 H. 526; 31 H. 678, 696; 35 H. 855, aff. 130 F.2d 786.)

Territory may not regulate food prices, 24 H. 485, but see 256 U.S. 170.

A physician's license fee law, invalid, 17 H. 389; veterinary license fees, invalid, 19 H. 99; banking license fees, valid, 19 H. 262; auctioneer's license fees, valid, 19 H. 651, aff. 226 U.S. 184, 191, 57 L. ed. 180; chauffeur's license not ex post facto, 22 H. 103. Beer licenses: 1 U.S.D.C. Haw. 206. Artesian wells, 30 H. 912. Foreign language school law invalid, 7 F.2d 710, 273 U.S. 284, 71 L. ed. 646. Guardianship of minors, 32 H. 479. Health, disbarring physician sustained, 31 H. 625, aff. 52 F.2d 411. Laundries, 4 H. 335; 10 H. 491; 27 H. 253. Loitering law of 1929 invalid, 31 H. 459, aff. 48 F.2d 171. Photographers: 33 H. 397. Public utilities: 34 H. 52; 305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890. Fisheries: 35 H. 608. Hit and run driving: 36 H. 32. Mutual benefit societies, 36 H. 206, 230. Ordinance, 28 H. 222. Sanitation, 21 H. 314.

Law against employer deducting wages, etc., valid, 23 H. 176. Workmen's compensation law, valid, 24 H. 97; see also, 26 H. 737; 28 H. 383. Law against trading stamps, invalid, 17 H. 331. Emigrant agents, 20 H. 483; cutting trees, regulation, invalid, 13 H. 272, but see limitation of damages, 19 H. 468.

Taxation: Taxable value assessed to lessee of public land, 23 H. 621; double taxation not necessarily invalid, 16 H. 603. General tax exemption, repealable, 19 H. 193; stamp tax 1 U.S.D.C. Haw. 86; 14 H. 431. Inheritance tax classifications: 19 H. 531. Inheritance tax: 31 H. 196. Weight tax: 31 H. 726, affd 54 F.2d 313. Taxing salaries of federal employees: 130 F.2d 786, affg. 35 H. 855. Tax appeal does not raise constitutional law issue (prior to amendment of statute): 34 H. 515. A tax is not an assessment of benefits: 305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890.

Assessments for street improvements, valid, 24 H. 524; 25 H. 69; 25 H. 180; 28 H. 298.

Subdivision of property: 29 H. 62.

Eminent domain, compensation must be reasonable, 1 U.S.D.C. Haw. 183; for private use, invalid, 13 H. 215. Payment to grantor where a deed was given pending condemnation does not violate am., 31 H. 781 also 787, aff. 61 F.2d 896. See 182 F.2d 172. No constitutional right to jury trial, 188 F.2d 459.

Criminal cases: "Twice in jeopardy" 27 H. 270. Privilege against incrimination, 40 H. 65. Incrimination, waived, 24 H. 621, see also, 3 U.S.D.C. Haw. 491. Confession: 188 F.2d 54. Trivial offense: 27 H. 844. Manslaughter: 29 H. 7. Confrontation: 36 H. 42. Compulsory fingerprinting: 34 H. 459. Conviction for embezzlement under charge of larceny, invalid, 26 H. 725. Systematic discrimination in drawing of jury violates due process clause: 118 F.2d 667. Provisions relating to persons present at gambling games do not violate due process clause, 40 H. 257.

6th Amendment. As to juries and jury trials see §83 and note. "Public trial" applicable, 28 H. 431. "Speedy trial," 16 H. 751. Confrontation, testimony at former trial, 23 H. 421. Confrontation may be waived, 33 F.2d 396; 36 H. 42. Commitment of insane without jury is valid, 19 H. 346, 535, 576, 647. Waiver of jury in felony case: 33 H. 113; 33 H. 813 (waiver of constitutional issues). Insufficient indictment: 35 H. 324, 334. Validity of accusation, 152 F.2d 933.

7th Amendment. Unanimity of jury waived, 13 H. 705. This amendment is in force in Hawaii, 21 H. 229; 30 H. 860. See 228 U.S. 364. Guardianship proceedings in insanity cases not suits at common law where value is in controversy, 39 H. 39. Not applicable to suits in equity, 40 H. 269.

8th Amendment. Imprisonment in county jail for contempt not "cruel and unusual," 1 U.S.D.C. Haw. 69; nor is imprisonment there for misdemeanors "infamous," 17 H. 428. Compelling such to work in public in jail uniform is infamous, 17 H. 168. Whipping as "cruel" etc. see 31 H. 982.

13th Amendment. Restraint for purposes of prostitution is "involuntary servitude," 1 U.S.D.C. Haw. 434.

14th Amendment. 13 H. 590, 598; does not invalidate law prohibiting minors in places where liquor is sold, 15 H. 607. Fish laws, 28 H. 43. Punishment, 28 H. 88. Unwarranted delegation of power, 28 H. 534. Taxation, ironclad uniformity not required, 30 H. 685 and 795, aff. 36 F.2d 159. Also see cases under 5th Am. supra. Foreign language schools, 11 F.2d 710, 273 U.S. 284. General demurrer does not raise issue of discrimination through grant of an exemption, 33 H. 180. See 130 F.2d 786, affg. 35 H. 855, as to charge of discrimination in taxation. Police power: 33 H. 397; 34 H. 459 (fingerprinting). Due process: (taxis) 34 H. 52; 35 H. 608. (Rulings of court) 160 F.2d 289.

Courts-Martial: have jurisdiction under 2nd and 12th Art. of War to try soldier under 96th Art. of War with violating a territorial statute, 13 F.2d 348.

National banking laws apply to Hawaii but not to banks existing in Hawaii prior to this act: 23 Ops. 177. Prohibition of organization of national bank with capital less than $200,000 in city with population over 50,000 does not apply to Schofield Barracks having a less population although it is part of a city and county having a greater population: 31 Ops. 120. Shipping Act conferred on Shipping Board, to exclusion of territorial public utilities commission, jurisdiction to regulate rates of common carriers by water between territorial ports: 24 H. 136; similar ruling as to jurisdiction of Interstate Commerce Commission over telephone rates in Hawaii: 26 H. 508. But P.U.C. has investigatory powers over water carriers notwithstanding Shipping Act: 305 U.S. 306, affg. 96 F.2d 412 and 33 H. 890.

Honolulu is a "port or place in the United States" within meaning of 46 U.S.C.A. 289, forbidding transportation of passengers by foreign vessel. 36 Ops. Atty. Gen. 352.

First Federal Employer's Liability Act, being separable, was valid in territories though not in states: 215 U.S. 87; but otherwise as to child labor law, because inseparable: 33 Ops. 374. Agricultural Marketing Act (46 Stat 11) extends to Hawaii, 36 Ops. 326; but certain acts relating to agricultural experiment stations do not, 35 Ops. 54. Federal law disqualifying district judges applies to Hawaii although not strictly workable as to procedure: 4 U.S.D.C. Haw. 1. The Edmunds Act is applicable to Hawaii and adultery is punishable under either the Federal or Territorial laws: 3 U.S.D.C. Haw. 262; 3 U.S.D.C. Haw. 517; but an acquittal or conviction in either the federal or the territorial court will bar a trial in the other: 3 U.S.D.C. Haw. 295. Extension of Edmunds Act to Hawaii did not repeal local law against fornication: 19 H. 201.

White Slave Traffic Act applies to Hawaii since it applies to territories, though Hawaii not enumerated in definition of "territory" in the Act, 125 F.2d 95. See 42 C. Cls. R. 57, on application to Hawaii, before this § was amended, of federal laws relating to territories generally. Federal liquor prohibition laws in effect in Hawaii repealed Mar. 26, 1934, c 88, 48 Stat 467. For application of other provisions of the Federal Constitution and laws to Hawaii, see note to Joint Resolution of Annexation, RLH 1955, page 13, and notes to other sections of this act, especially §§4, 6, 10, 45, 55, 73, 81, 83, 86, 101. Referred to also in 13 H. 20, 556, 706; 16 H. 253; 18 H. 255, 539; 19 H. 17; 21 H. 241; 25 H. 688; 108 Fed. 113; 114 Fed. 849; 122 Fed. 587, 776; 23 Ops. 177, 346; 1 U.S.D.C. Haw. 49, 88, 91; 3 U.S.D.C. Haw. 66.

§6. Laws of Hawaii.

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

Re meaning of "laws of Hawaii" see section 1 and note.

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

All parts of this Act must be considered in determining what Hawaiian laws were continued in force: 197 U.S. 354. A judicial constitution of a statute before annexation is continued as a part of the statute: 210 U.S. 153; 114 Fed. 852; 16 H. 776. The local law against fornication is not repealed by the extension of the Edmunds Act to Hawaii: 19 H. 201. As in a state, a person might be liable under the local law against adultery, notwithstanding that he might be liable also for the same offense under the Edmunds Act: 3 U.S.D.C. Haw. 262; Id. 517. But, not as in a state, a conviction or acquittal under either law would bar a subsequent jeopardy under the other law: Id. 295. See 133 U.S. 333.

A Hawaiian corporation chartered before annexation is not a "corporation organized by authority of any laws of Congress" within the meaning of an Act of Congress forbidding contributions for election purposes, but, obiter dictum, contra as to corporations chartered (except those incorporated without official consent by filing articles of association) after annexation, whether before or after the establishment of territorial government: 3 U.S.D.C. Haw. 299. Referred to in 13 H. 481, 706; 14 H. 269, 432; 15 H. 117, 329; 16 H. 245, 266, 401; 18 H. 539; 21 H. 250 (Ann. Cas. 1916A, 1136); 188 U.S. 313; 205 U.S. 354; 217 U.S. 244; 108 Fed. 113; 114 Fed. 849; 122 Fed. 587; 1 U.S.D.C. Haw. 88, 91; 23 Ops. 542. See notes to §§3, 5, and 55.

§7.

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

Civil Laws:

Sections two and three, Promulgation of laws; chapter five, Flag and seal; sections thirty to thirty-three, inclusive, Tenders for supplies; chapter seven, Minister of Foreign Affairs; chapter eight, Diplomatic and consular agents; section one hundred and thirty-four and one hundred and thirty-five, National museum; chapter twelve, Education of Hawaiian youths abroad; sections one hundred and fifty to one hundred and fifty-six, inclusive, Aid to board of education; chapter fourteen, Minister of the Interior; sections one hundred and sixty-six to one hundred and sixty-eight, inclusive, one hundred and seventy-four and one hundred and seventy-five, Government lands; section one hundred and ninety, Board of commissioners of public lands; section four hundred and twenty-four, Bureau of agriculture and forestry; chapter thirty-one, Agriculture and manufactures; chapter thirty-two, Ramie; chapter thirty-three, Taro flour; chapter thirty-four, Development of resources; chapter thirty-five, Agriculture; section four hundred and seventy-seven, Brands; chapter thirty-seven, Patents; chapter thirty-eight, Copyrights; sections five hundred and fifty-six and five hundred and fifty-seven, Railroad subsidy; chapter forty-seven, Pacific cable; chapter forty-eight, Hospitals; chapter fifty-one, Coins and currency; chapter fifty-four, Consolidation of public debt; chapter fifty-six, Post-office; chapter fifty-seven, Exemptions from postage; chapter fifty-eight, Postal savings banks; chapter sixty-five, Import duties; chapter sixty-six, Imports; chapter sixty-seven, Ports of entry and collection districts; chapter sixty-eight, Collectors; chapter sixty-nine, Registry of vessels; section one thousand and eleven, Customs-house charges; section eleven hundred and two, Elections; section eleven hundred and thirty-two, Appointment of magistrate; last clause of first subdivision and fifth subdivision of section eleven hundred and forty-four, first subdivision of section eleven hundred and forty-five, Jurisdiction; sections eleven hundred and seventy-three to eleven hundred and seventy-eight, inclusive, Translation of decisions; section eleven hundred and eighty-eight, Clerks of court; sections thirteen hundred and twenty-nine, thirteen hundred and thirty-one, thirteen hundred and thirty-two, thirteen hundred and forty-seven to thirteen hundred and fifty-four, inclusive, Juries; sections fifteen hundred and nine to fifteen hundred and fourteen, inclusive, Maritime matters; chapter one hundred and two, Naturalization; section sixteen hundred and seventy-eight, Habeas corpus; chapter one hundred and eight, Arrest of debtors; subdivisions six, seven, ten, twelve to fourteen of section seventeen hundred and thirty-six, Garnishment; sections seventeen hundred and fifty-five to seventeen hundred and fifty-eight, inclusive, Liens on vessels; chapter one hundred and sixteen, Bankruptcy, and sections eighteen hundred and twenty-eight to eighteen hundred and thirty-two, inclusive, Water rights.

Penal Laws:

Chapter six, Treason; sections sixty-five to sixty-seven, inclusive, Foot binding; chapter seventeen, Violation of postal laws; section three hundred and fourteen, Blasphemy; sections three hundred and seventy-one to three hundred and seventy-two, inclusive, Vagrants; sections four hundred and eleven to four hundred and thirteen, inclusive, Manufacture of liquors; chapter forty-three, Offenses on the high seas and other waters; sections five hundred and ninety-five and six hundred and two to six hundred and five, inclusive, Jurisdiction; section six hundred and twenty-three, Procedure; sections seven hundred and seven hundred and one, Imports; section seven hundred and fifteen, Auction license; section seven hundred and forty-five, Commercial travelers; sections seven hundred and forty-eight to seven hundred and fifty-five, inclusive, Firearms; sections seven hundred and ninety-six to eight hundred and nine, inclusive, Coasting trade; sections eight hundred and eleven and eight hundred and twelve, Peddling foreign goods; sections eight hundred and thirteen to eight hundred and fifteen, inclusive, Importation of livestock; section eight hundred and nineteen, Imports; sections eight hundred and eighty-six to nine hundred and six, inclusive, Quarantine; section eleven hundred and thirty-seven, Consuls and consular agents; chapter sixty-seven, whale ships; sections eleven hundred and forty-five to eleven hundred and seventy-nine, inclusive, and twelve hundred and four to twelve hundred and nine, inclusive, Arrival, entry and departure of vessels; chapters sixty-nine to seventy-six, inclusive, Navigation and other matters within the exclusive jurisdiction of the United States; sections thirteen hundred and forty-seven and thirteen hundred and forty-eight, Fraudulent exportation; chapter seventy-eight, Masters and servants; chapter ninety-three, Immigration; sections sixteen hundred and one, sixteen hundred and eight, and sixteen hundred and twelve, Agriculture and forestry; chapter ninety-six, Seditious offenses; and chapter ninety-nine, Sailing regulations.

Session Laws:

Act fifteen, Elections; Act twenty-six, Duties; Act twenty-seven, Exemptions from duties; Act thirty-two, Registry of vessels; section four of Act thirty-eight, Importation of livestock; Act forty-eight, Pacific cable; Act sixty-five, Consolidation of public debt; Act sixty-six, Ports of entry; and Act sixty-eight, Chinese immigration.

Referred to in 15 H. 329, 413, 606; 16 H. 245, 253; 19 H. 209, 210, 213, 214; 197 U.S. 354; 217 U.S. 244; 108 Fed. 113; 1 U.S.D.C. Haw. 88, 91; 3 U.S.D.C. Haw. 299. See §§1, 5 and 6 and notes thereto.

§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.

Referred to in 15 H. 115, 274; 16 H. 245. See §§9, 66, 68, 71-79.

§9. Amendment of official titles.

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

Referred to in 16 H. 245, 400. Compare Laws of 1893-4, Act 1, and Const. of 1894, Art. 92, §2.

§10. Construction of existing statutes.

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

That all contracts made since August twelfth, eighteen hundred and ninety-eight, by which persons are held for service for a definite term, are hereby declared null and void and terminated, and no law shall be passed to enforce said contracts in any way; and it shall be the duty of the United States marshal to at once notify such persons so held of the termination of their contracts. [Am June 27, 1952, c 477, §403(a), 66 Stat 279]

Compare Const. of 1894, Art. 92, §§1-3. Admiralty cases were included in "other proceedings" under this §, and those then pending continued in the jurisdiction of the territorial courts, though subsequent ones could be brought only in the federal court, and no appeal lay in such pending cases to the federal circuit court of appeals: 13 H. 174; 108 Fed. 113; 183 U.S. 545; 187 U.S. 309. A petition in 1904 for the removal of a guardian appointed in 1899 is in a proceeding pending in 1899: 197 U.S. 354. An action by the Territory for taxes due the Republic is not barred: 18 H. 255. Imprisonment, for contempt, to compel an administrator to pay creditors pro rata is not imprisonment for debt: 19 H. 234; but the execution of a writ of ne exeat, in assumpsit, to obtain security for a judgment that might be recovered would be such imprisonment: 15 H. 413.

Inhibition against suit on contract for personal service except for damages for breach, does not prevent injunction against exhibition or dealing in moving pictures in violation of contract: 22 H. 550; nor does this provision apply to a contract to have one cultivate on shares land in sugar cane for three crops in a husbandlike manner to the satisfaction of another: 25 H. 558. On contract labor laws, see note to Joint Resolution of Annexation RLH 1955, page 13. On applicability to Hawaii of Federal laws against introduction of contract labor, see 27 Ops. 479. Referred to in 16 H. 245, 255; 18 H. 539; 20 H. 487; 22 H. 587; 197 U.S. 354; 1 U.S.D.C. Haw. 41.

§11. Style of process.

That the style of all process in the Territorial courts shall hereafter run in the name of "The Territory of Hawaii," and all prosecutions shall be carried on in the name and by the authority of the Territory of Hawaii. [Rep L Sp 1959 1st, c 5, §8]

Cf. Const. of 1894, Art. 92, §3. Prosecutions under county ordinances should be in name of Territory: 17 H. 185. Likewise prosecutions in Territorial courts under national prohibition: 27 H. 240. Referred to in 16 H. 245.

CHAPTER II.

THE LEGISLATURE

C II of this act (§§12-62), excepting §15, was taken, with some modifications, from Const. of 1894; see also, RL 1905, p 51, and RL 1915, p 29. See 16 H. 242, 253.

§12. The legislative power.

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

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

§13.

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

Referred to in 16 H. 245; 22 H. 250.

§14. General elections.

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

Although legislature is authorized by §85, as amended, to amend election laws of Territory, it cannot change time for holding elections of members of legislature prescribed by this §14 of the Org. Act, by providing that a candidate receiving a majority at direct primary shall be thereby elected: 22 H. 247. But such provision is valid and operative as to county supervisor notwithstanding that there are more than one to be elected: 22 H. 520. Referred to in 15 H. 266; 16 H. 245; 20 H. 295. See §85, election of delegate; §64.

§15. Each house judge of qualifications of members.

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

This prevents secretary of Territory and courts from passing on eligibility of a candidate for the legislature except when it is clearly their duty to do so: 14 H. 145; 15 H. 329, 332. The supreme court formerly had exclusive jurisdiction in election cases: Const. of 1894, Art. 40; 15 H. 328. Referred to in 15 H. 266; 16 H. 245; 20 H. 312.

§16. Disqualification of legislators.

That no member of the legislature shall, during the term for which he is elected, be appointed or elected to any office of the Territory of Hawaii: Provided, That nothing in this Act shall prevent a member of the legislature from serving as a delegate to a constitutional convention. [Am Oct. 26, 1940, c 752, 63 Stat 926]

Office of a supervisor of city and county of Honolulu is not an office of Territory, and hence a member of legislature may be elected to such office: 25 H. 669. Referred to in 16 H. 245.

§17. Disqualifications of government officers and employees.

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

Notaries and similar officers were held within inhibition of somewhat similar provision of Const. of 1887; to be eligible, officer must resign before election: 8 H. 561. Office of supervisor of city and county of Honolulu is an office by authority of the Territory, and hence acceptance of such office by member of the legislature vacates his office as such member: 25 H. 669. Referred to in 16 H. 245.

§18.

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

Referred to in 13 H. 19; 16 H. 245; 17 H. 13, 18, 248; 18 H. 140.

§19. Oath of office.

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

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

Attorneys at law are not required to take this oath: 15 H. 383.

§20. Officers and rules.

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

The clerk of the house is an officer within meaning of a Federal statute forbidding officers to destroy public records (vouchers of house expense): 2 U.S.D.C. Haw. 20.

§21. Ayes and noes.

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

§§21-24, with many other §§, are referred to in 16 H. 245.

§22. Quorum.

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

§23.

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

§24.

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

§25. Punishment of persons not members.

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

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

Does not prevent garnishment of senator's salary under territorial law: 19 H. 428.

§26. Compensation of members.

The members of the legislature shall receive for their services, in addition to mileage to and from general sessions at the rate of 20 cents a mile each way, the sum of $1,000 for each general session, payable in three equal installments, on and after the first, thirtieth, and fiftieth days of such session, to be appropriated by Congress from any moneys in the Treasury not otherwise appropriated, based upon regular estimates submitted through the Secretary of the Interior. The sums authorized to be appropriated from the Federal Treasury for mileage and salary of members for general sessions shall constitute the only sums to be appropriated by the Congress for legislative expenses. Members shall receive from the Treasury of the Territory $500 as compensation for any special session held under the provisions of existing law. The Territory of Hawaii is hereby authorized to enact such laws as it may deem appropriate for the payment from the Treasury of the Territory for compensation and mileage to such members for budget sessions and for the payment of additional compensation to such members for general sessions and special sessions. [Am May 27, 1910, c 258, §2, 36 Stat 443; July 9, 1921, c 42, §301, 42 Stat 115; June 27, 1930, c 647, 46 Stat 823; Aug. 20, 1958, Pub L 85-690, §4, 72 Stat 684]

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

§27. Punishment of members.

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

§28. Exemption from liability.

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

§29. Exemption from arrest.

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

THE SENATE

§30. Senate; Number; Term.

The senate shall be composed of twenty-five members, who shall be elected by the qualified voters of the respective senatorial districts for a term of four years beginning with their election and ending on the day of the second general election after their election: Provided, however, That (1) senators elected at the general election of 1956 shall continue to hold office until the expiration of the terms for which they were elected and shall be deemed to have been elected from the new senatorial district in which they resided at the time of their election; and (2) that at the first session of the legislature subsequent to the general election of 1958, the legislature shall so assign the senators to long or short terms, that as nearly as possible one half of them, including the holdover senators, shall hold office for two years and the remaining senators shall hold office for four years. In the event that the legislature fails to make the necessary assignments of short and long terms for senators as herein required, the Governor shall do so. [Am Aug. 1, 1956, c 851, §1, 70 Stat 903]

Referred to in 13 H. 19; 16 H. 245. Congress apportioned the senators elected at the first election, on failure of the legislature to do so: 32 Stat 200. See §55 on reapportionment of senators and representatives on the basis of number of citizens as determined by the census.