The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-12-02
HAVE COUNTIES
SOVEREIGNTY?
Supreme Court to Say Whether
a County Is Liable to
Prosecution.

AANDhhANS AOA ooLid6SS VA dCGUuuL Oh
Injuries to person or property, through
the negligence of the county authori-
ties. officials or servants, is a ques-
| ton that the Supreme Court is called
on to decide.
Judge Parsons at Hilo held in a
| case now appealed that the county in
this Territory is sovereign and can
| not be prosecuted without its consent.
The case is that of Kumazo, a Japa-
nese storekeeper, against the County
of Hawaii. He takes exceptions to
the Fourth Circuit Court on the ruling
just mentioned, and his appeal is
argued in a brief filed by his attor-
neys, Carl S, Smith and A. F. Judd.
Plaintiff, it is related, was the owner
of general merchandise store at
Onomea. Defendants employee. while
working on a road under the direction
of the supervisors of the county, di-
verted the course of a large stream of
water so as to destroy the PLAINTIFF S
store, stock of merchandise and home,
inf1icting damage in the sum of $780,
900.
TO the plaintiffs declaration the de-
PENDANT interposed a demurrer which
the court sustained and Judgment was
rendered accordingly.
One question only is presented, Ku-
fnazo's attorneys say-"Is the County
of Hawaii liable to the plaintiff upon
the facts stated in his declaration"
Defendants theory and that adopted
by the court is thus stated:
1.-THE county is subdivision Of the
State or Territory, established for the
administration of public affairs of
nifty from actions at law which the
State enjoys by reason Of its SOW
ereign character"
To which the plaintiff replies:
81 The rule which has found fire.
quent application elsewhere Is based
upon the fundamental character of
county government in its relation to
the State and has no application in
Hawaii because Of the fundamental
ly different character of our local in
stitutfons, which difference requires
the abandonment of the rule.
g. Granting all that can be said
favorable to the sovereign immunity
rule, the reasoning upon which it rests
Gin a great majority of cases at leasD
is artificial and violative of the funda-
mental rights of property; and in all
cases in recent years where courts have
found the opportunity to avoid the
rule a recovery has been allowed
against the county"
Plaintiffs attorneys say that the fact
that our Legislature used the word
county in describing subdivisions OF
the Territory does not of itself IN
vest those subdivisions with sovereign
attributes, nor does the christening
process make the local organism or
Hawaii bear even the most remote
similarity to the counties of Massa-
chusetts, Virginia or Kansas.
moments consideration, it is said,
will Indicate the reason why our coun-
ties differ so materially from those on
the mainland 1t is common knowledge
that the County Act was very vigor-
ously contested on the ground that
conditions in Hawaii are so radically
different from those on the mainland
that public affairs could be better
managed without local political or
ganization; and in the passage of the
County Act practically all of the pup
lie matters which are classed as SOW
ereign powers of the Territory were
withheld from the counties for the
frankly avowed reason that, with the
large percentage of electors untutored
in the practise of democratic goVecd-
ment. it would be unsafe to entrust
IN the counties the exercise of so i'm
eortant functions.
The Territory of Hawaii it is argued,
has continued to exercise the functions
of a sovereign since the passage OF
the County Act exactly as it did be-
fore. and the exercise of no single
function of a public or territorial ma
ture has been conveyed to the coin
ties
The brief proceeds to show exactly
what difference warrants the courts
in holding that a municipal corpora
ton is liable for the tort of its agent
and the county is immune from such
lis biIity." Reference is made to
work entitled "An Introduction to the
Local Constitutional History Of the
United States" by George 2. Howard
"easily. conceded to be the most merit
orious volume in the Johns Hopkins
University studies in historical and
political science"
It is pointed out that the town ana
the shire came from England. THESE
institutions took new forms as re
auired by the conditions of each 10
cality. In the more closely settled
communities of Rhode Island. Plym-
outh and Massachusetts Bay me
most important public functions were
performed by the towns, while IN ' r-
gfnia and Carolina the town amounted
to nothing and the county performed
all of the public duties. Pennsylvania
was a compromise between those TWO
sections.
There is a lot of discussion on this
line and many authorities are quoted
Altogether it Is an interesting case
not the least from the fact that
Japanese in this American Territory
is bearing the brunt of contendtng TOT
personal rights against the cialr1 OF