The Hawaiian gazette., 1905-06-06

| tive power contained In the Organic
Act includes ''all rightful subjects OF
legislation not inconsistent with the
constitution and laws Of the United
States locally applicable and ex
pressly includes the power to "create
| counties and town and city municipali
ties aud provide for the government
thereof There is no limitation up.
on this power except as found in the
provisions of the Organic Act and in
the constitution. The desire of the
voters to obtain and by officers elect
ed by themselves to exercise all the
control over their local affairs which
can be obtained within this limitation
ought not to be interfered with by the
Judiciary upon doubtful or uncertain
grounds. II is essential for the wei
fare of Hawaii for the security of life
and property that the measure devised
for establishing this principle, imper-
feet in many details and to certain
extent tentative, as it well may be.
and yet be valid measure. shall be
free from such radical defects ms would
defeat its object. With political or
financial objections to the act, If any
there be, this court has nothing to do.
We have only to decide whether any
of its vital features are so inconsist
ent with the Organic Act rs to require
the inference that it is not authorized
thereby. Ii is to be observed that the
organization of counties with their
proper officers for attending to their
own affairs necessarily is inconsistent
with all those laws of Hawaii relating
to such portions of the duties of Ter.
ritorial officers as properly are includ.
ed in the duties and functions of coun-
~ officers. No County Act can be re-
garded as unauthorized by the Or
ganic Act by reason of such inconsist-
ency.
The disposition of public funds is no
moot or abstract question, but vitality
concerns every taxpayer. We trust
that the time will never come in Ha-
wall when taxpayers shall not care to
seek by appropriate proceedings in
court to avert unlawful use of public
money in connection with an uncon.
stitutional statute. But there is some.
thing far more important than such
exhibitions of public spirit on the part
of taxpayers, and that is a feeling of
confidence that courts will interpret
the laws and declare the law with iu-
dicial impartiality, unbiased by per-
sonal feeling or motive. Nothing can
be more deplorable, more abhorrent to
true Americanism, than n belief. thus
far it is to be hoped felt by few per.
sons, that our courts in interpreting
statutes can reach conclusions to satis-
fy their own wishes, likes or dislikes.
1t ought to be unnecessary to say that
what we may think of the wisdom or
advantages of county government I'M
der existing conditions in Hawaii has
nothing to do with the questions of
law at issue. Our opinion concerning
the practical working of this or of any
other system or county legislation,
whether it appears to us that larger
opportunity for calculating popular
wishes in the expenditure of public
money or in other matters is thus af-
forded or not, is immaterial ana IT.
questions. With these convictions of
judicial duty we have examined and
decided the law involved in this case.
The agreed statement sets forth the
plaintiff s grounds or reasons for
claiming the invalidity of the act in
more detail and variety of form than
appear in the above summarized state
ment of them and his attorney in argu-
ment illustrated and enforced the
plaintiffs claims from several points
of view. All of these matters were
ably presented and have received our
careful attention.
CONFLICT OF OFFICERS.
We have already observed that 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 counties and providing for
therefore does not imply, the abroga.
ton of the functions in respect of
Territorial affairs of the Territorial Of
ficers 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-
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 Countless
ETC., but may appropriately ,elate as
well TO details making those duties
more specific, or enlarging them, but
not substantially revoking them nor
for their performance an