Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1905-11-25
Supervisors Power
Is Upheld
By Supreme Court
HAVE RIGHT TO MAKE ORDINANCES


egated to other persons or bodies. There
Is, however. an exception to this max.
i'm as well established as the maxim
itself. This exception arises by impli.
cation 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 especial
ly interested and in regard to which
they are supposed to be especially COM
petent to Judge
The county act provides that each
county shall be body corporate and
polite and Is subject to sue and ba
sued in its corporate name" 1t con
fers upon counties various corporate
functions. The act as q whole was
passed for the purpose of establishing
local government, although theoretical.
ly the counties established by the act
may properly he considered as quasi
corporations rather than municipal cor.
porations proper. The act also confers
upon the Boards Of Supervisors certain
legislative powers other than that now
in question. THIS is a DELEGATION
OF POWER WHICH is GENERALLY
HELD VALID ELSEWHERE EX
CEPT WHEN EXPRESSLY PROHIB-
IT'D BY CONSTITUTIONAL PROvI.
SION.
ON THE WHOLE WE ARE OF THE
OPINION THAT THE LEGISLATURE
COULD DELEGATE TO THE COUN
TH BOARDS OF SUPERVISORS POW.
Err TO MAKE ORDINANCES RELAT.
ING TO CERTAIN MATTERS BY
LOCAL CONCERN.
Power has been conferred expressly
by the county act (Sec. 90, Subd -
upon the Board of Supervisors OF each
county,
"5. To regulate by ordinance with.
In 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 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.
Moreover, We do not understand that
this statutory provision authorizes the
Board of Supervisors to impose impris-
orment 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 IL the part relating to i'm
prisonment is void. OF course the pen.
atty, whatever its character, should be
reasonable' in amount, and 1t 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.
The enacting clause of the ordinance
also Is invalid. Ii reads: The peo-
pie of the county of Oahu do ordain as
iollows:' The power to make ordi-
nances is conferred upon the Boards
OF Supervisors and not upon the peo.
pie of the county. But this does not
lnValidate the ordinance, for II did not
nave to contain any enacting clause.
and the petition and return show that
1t was in fact made by the Board of
Supervisors.
The next question Is whether the
proceeding TO enforce the orL-aance Ia
ciVi! or criminal and within the juris
diction OF district magistrate.
Whether they should be regarded as
clVil OF criminal depends much upon
the language OF the statute taken as
whole and to some extent upon the ma.
ture OF the act charged. So far as its
nature Is concerned, the act in the
present case would naturally be the
subject of criminal statute. II in
addition to this the language of the
provision already quoted is not sufti.
cient we think that there is sufficient
In the first subdivision of section 80 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:
Il. Attend the circuit court in and
Tor said county and conduct ON behalf
OF the people all prosecutions therein
Tor onenses against the laws OF the Ter.
ritory OF Hawaii and the ordinances OF
the Board OF Supervisors OF the couu.
ty."
This shows en- intention ON the part
OF the Legislature that at least some
violations of some ordinances OF Boards
Of Supervisors were to be offenses "
be prosecuted as such by the public
prosecutor and on behalf OF the people,
in other words. that they were to ba
considered criminal or public offenses.
II any such violations are to be regard.
cd as such oiienses, those now in ques-
tion are certainly among them. MORE.
OVER. OFFENSES AGAINST ORDI
NANCES ARE CLASSED WITH OF
FENSES AGAINST LAWS, AS Ii
BOTH WERE OF THE SAME CHAR
ACTER.
II, as we hold. the violation of this
ordinance is criminal offense 1t would
be within the jurisdiction OF district
ma atFfG frat