The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-06-05
CONFLICT OF OFFICERS.

We nave Already observed Unat the
act would not be unconstitutional be-
cause in provisions for government of
counties and control of county affairs
by elected county officers it conflicts,
as to a considerable extent it must do,
with provisions in the Organic Act for
Territorial government by appointive
Territorial officers, nor even if in some
matters it unnecessarily substitutes
county officers for Territorial officers.
Considerable discretion must be allow
ed for the exercise of the expressed
power to create counties and provide
for their government. A narrow, rigid
construction of the meaning of that
power is not required for the accom-
plishment of any express or implied
purpose of the Organic Act, and there
fore is inappropriate.
Creating coun les and providing for
their government does not require, and
therefore does not imply, the abroga-
tion of the functions in respect of
Territorial affairs of the Territorial Of
fcers such as the Attorney General
and Superintendent of Public Works.
As far as officers other than the At
torney General are concerned, we do
not consider that the act unduly en-
croaches upon their prescribed func
tions. The Organic Act places with the
Attorney General the duty OF prose
cutting violations of Territorial penal
laws and claims. together with many
other duties imposed upon him by the
laws of Hawaii, subject to such ''mod-
ification' as the Legislature may by
law enact. The provision that these
duties care subject to modification
by the Legislature was not neces-
sarily made solely with reference to
the authority ''to create counties, -
etc, but may appropriately relate as
well to details makirg those duties
more specific, or charging them, but
not substantially revoking them nor
substituting for their performance an
other officer in place of the Attorney
General.
The Territory as well as counties is
concerned in the enforcement of Ter
ritorial penal laws. 1t is the Terri
tory and not the counties to which
accrue fines and costs for violation OF
Territorial laws and the proceeds of
Territorial claims. To place with
county attorneys to the exclusion of
the Attorney General the duty of pros
ecuting them would not be a "modi-
fication'' of the Attorney General
duties, but practically a repeal of that
portion of the Organic Act which re-
Iates to them. Violation of county
ordinances and prosecution of county
claims would properly be entrusted to
county attorneys only, bur that is the
extent to which their exclusive author
ity can go without subverting the Ter
ritorial system provided by Congress.
Even if it were true that the act in
respect of the Attorney General .
functions or in some other respects
goes further than is contemplated by
the provisions of the Organic Act for
county government, there is nothing
therein which appears to US to inval-
idate the act. The result would SIM
ply be that the Attorney General would
still be authorized to perform all of
his functions as prescribed by the Or
ganic Act as far as they concern Ter
ritorial matters. This is perhaps the
intent of the provision in the County
Act which makes the county attorneys
the deputies of the Attorney General.
COUNTY LIMITATIONS.
Further considering the objections
presented to the County Act it IS to
be observed that a county is the agent
or instrumentality of the State or Ter
ritory and has such powers only as
are granted by the statute creating 1t.