The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1907-12-03
HAVE COUNTIES
SOVEREIGNTY?

{ whether counties are immune from
Q liability for damages on account O
|. injuries 10 person or property. through
/. the negligence OF the county authori
, ties. officials or servants, Is a aues'
ton that the supreme Court Is called
on TO decide. .
Judge Parsons at Hilo held in g
! case now appealed that the county In
Al this Territory Is a 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 10
the Fourth Circuit Court on the ruling
Just mentioned, and his appeal is
argued In a brief filed by his attor-
tneys. Carl S. Smith and AT. Judd.
i Plaintiff. It is related. was the owner
of a general merchandise store at
Onomea. Defendants employee. while
working on a road under the direction
OF the supervisors OF the county. d.
verified the course of a large stream OF
water so as to destroy the plaintiffs
store. stock of merchandise and home.
infiicting damage in the sum OF s10,-
900.
To the plaintiffs declaration the de-
fendant interposed demurrer which
the court sustained and Judgment was
rendered accordingly.
| One question only is presented. Ku-
mazo's attorneys say-''Is the County
OF Hawaii liable to the plaintiff upon
the facts stated in his declaration?"
Defendants theory and that adopted
= l..
The county is a subdivision of the
lState or Territory, established for the
administration of public affairs of
State only. and so shares the immu-
nifty from actions at law which the
State enjoys by reason OF its SOW
ereign character"
To which the plaintiff replies:
Il. 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
stitutions. which difference requires
the abandonment OF the rule.
IS. Granting .all that can be said
favorable TO the sovereign immunity
rule. the reasoning upon which 1t rests
Gin great majority of cases at least)
is artificial and violative of the funda- |
mental rights of property; and in all
cases in recent years where courts have
fSdnd 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
process make the local organism of
similarity to the counties of Massa-
chusetts. Virginia or Kansas.
A moments consideration. 1t 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 pub
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 gove-a-
'ment. 1t would be unsafe 10 entrust /
to the counties the exercise of so i'm
portant 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 . 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 |
liability" Reference is made to a |
work entitled AN Introduction to the /
Local Constitutional History of the |
United States" by George e. Howard, |
easily conceded to be the most merit |
orious volume in the Johns Hopkins |
University studies in historical and |
political science"
1t is pointed out that the town and |
the shire came from England. These |
institutions took new forms as re-
quired by the conditions of each To- |
cality. In the more closely settled !
communities OF Rhode Island. Plym- |
outh and Massachusetts, Bay the |
most important public functions were |
performed by the towns. while in vir- |
ginia and Carolina the town amounted
to nothing and the county performed
all Of the public duties Pennsylvania
was a compromise between those two
sections.
Altogether 1t is an interesting case,
not the least from the fact that a
japanese in this American Territory,
is bearing the brunt Of contending for
personal rights against the clairr Of
sovereign immunity on the part Of the
county.