The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1905-11-24
PROWERS Of
SUPERVISORS
AFFIRMED
Continued from page one).

NOOHllluGu lIOLl page OIGJs
though purporting in its enacting
clause to have been made by the peo-
pie of a County.
Prosecutions for violations of Coun-
ty ordinances are criminal rather than
! civil in their nature, as shown by va
rlous provisions of the County Act.
IN the absence of statutory provi-
sion as to what courts shall have jurs-
diction of offenses against County or
| dinances, the appropriate Territorial
courts have jurisdiction according TO
7 the general laws defining their juris-
/ diction over offenses against the Terri
torial laws. The provision of the Coun-
! ty Act that the county attorney shall
! be the public prosecutor for the Coun-
! ty and attend the Circuit Court in and
/ for the County and conduct all pros
ecutions therein for offenses against
! the laws of the Territory and the or
| dinances of the Board of Supervisors
/ of the County, is held, especially in
/ view of other provisions not to give
Circuit Courts exclusive Jurisdiction
of offenses against ordinances.
Prosecutions for offenses against
! County ordinances should be in the
name of the Territory.
The district magistrate having de-
clined to take jurisdiction of a COM
plant for a violation of a County ordi-
nance, and being held to have such
jurisdiction, is required to take juris-
diction, but is not required to act in
particular manner"
The court first disposes of the ques-
ton of whether the Legislature had
power to delegate to Supervisors the
power to make ordinances, holding that
the delegation of such power was le-
gal. Continuing, the court intimates
that the County supervisors may be
without power to pass ordinances call
ing for Imprisonment as a punishment
for violation:
I'VE do not understand that this sta
tutory provision authorizes the Board
of Supervisors to impose imprlson-
ment as penalty, although as to that
we are not required to decide, for the
ordinance, which imposes a fine not eX-
ceeding $500 or Imprisonment for not
more than six months or both, may
stand even if the part relating to i'm
prisonment is void. OF course the PEN
atty, whatever it's character, should be
reasonable I'm amount, and it is usual
for statutes to specify both the char
acter and the maximum amount that
may be prescribed by the ordinance.
This statute does not specify either.
1t is generally held that penalties such
as Imprisonment and forfeiture, other
than pecuniary cannot be prescribed in
the absence of express statutory au-
thority, although it is held in some
cases at least that power expressly
conferred to enforce ordinances or pc
cuniary penalties imposed under ordi-
nances includes power to imprison. not
as punishment, but as a means of
enforcing payment of such penalties
when imposed.
'"The enacting clause of the ordi-
nance also is invalid. 1t reads: The
people of the County of Oahu do ordain
as follows: The power to make ordi-
nances is conferred upon the Boards
of Supervisors and not upon the people
of the County. But this does not in
validate 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 decision takes up the question of
whether proceeding to enforce a.
county ordinance is civil or criminal
and whether the district courts have
jurisdiction of cases arising under such
ordinances. 1t is held that the pro-
ceeding is a criminal one, and that the
district magistrates have jurisdiction.
Other considerations in the decision are
as follows:
Apparently it was the intention to
prosecute the case before the district
magistrate in the name of the county
In our opinion it should be prosecuted
i'm the name of the Territory
Section II of the Organic Act pro-
vides that the style Of all process in
the Territorial courts shall hereafter
run in the name of Territory of Hawaii
and all prosecutions shall be carried on
in the name and by the authority of
the Territory of Hawaii
In the present case there is no sta
tute or ordinance that requires such
prosecutions to be in the name Of the
county. In the absence of a constitu-
tional provision or when such a pro-
vision 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, how
ever, it is expressly provided that they
shall be in the name Of the state or
the people.
'As we construe it, the county act in
question contemplates that such prose-
cutions 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 SUBJ
ject but little is requered to show such