The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-12-28
GOOD IN LAW
AND IN REASON
McCandless and Armstrong Are
Answered on Gutter
Ordinance.

C. H. Olson, Deputy County Attor-
ney, has filed a memo for the Terri
tory in the awning gutter ordinance
case. This is in reply to the conten-
lions of defendants, L. l. McCandIess
and James Armstrong. namely: That
the charge does not set forth an offense
under the laws of the Territory; that
the ordinance is illegal, null and void
because the. county had no power to
ordain it, because it is unreasonab Bile
and because it imposes an unjust dis
elimination; and that it cannot be
applied in this case because it is ex
post facto.
Mr., Olson quotes the section of the
County Act giving the county power
to make ordinances with penalties
From this he contends that the only
objection that would stand against the
legality of the ordinance is that it con-
flicted with some general law of the
Territory.
Answering the assertion of unreason-
ableness, it is stated that the fire linn
its were fixed as the boundaries of the
district covered by the ordinance for
exactly the same reason that they were
fixed as the limits for fire protection
because within those limits is enclos-
ed the principal business section of Ho-
nolulu. the only town of any size with
in the county.
1T is not pretended" the pleading
says, that the ordinance is intended
TO protect persons using the streets and
sidewalks from rain simply. The pur-
pose is to protect, first, such persons
from being deluged by concentrated
streams of water accumulated by
awnings, against which umbrellas and
rainy weather apparel are of little pro-
lection, and, secondly, the streets from
being destroyed by the force of such
streams of water. In view Of that
purpose, an awning without a gutter is
not better than no awning at ALL In
the next place. the court knows judi
cially that awnings of cloth and can
vas are practically always pulled up
during rains, whereas awnings of other
materials are usually, if not always,
stationary; which accounts very rea-
sonably for the discrimination between
cloth and canvas awnings on the one
side and awnings of other materials on
the other
1t is shown that an Indiana case cit
ed by the defendants declares that the
power of a court to declare an ordi-
nance unreasonable and therefore void
is practically restricted to cases in
which the legislature has enacted Meth
ing on the subject matter of the ordi-
nance" Here the ordinance is passed
under the power conferred on the Board
of Supervisors to pass ordinances not
conflicting with the general laws of
the Territory, and is in exact conform
ity to legislation Of the Territory on
the same subject. Hence the ordinance
cannot be attacked on the ground that
it is unreasonable,
1t is contended at length that the
ordinance does not discriminate I'M
justly. The statement Of conditions ex-
listing in the fire limits is repeated, and
it is submitted that the ordinance in
being directed and limited to the Sec
ton of the county where alone the
trouble exists. cannot be said to dis
eliminate unjustIy.''
~NNAAiACl 10 Unjust diSSi AAAi1l4SlSiCil
posed on account of the exemption Of
cloth and canvas awnings, for the rea-
son already stated.
Replying to the ex post facto objec-
ton the brief says:
In the first place, no retroactive
operation of the ordinance is here at
tempted. The charge is not on account
of anything done before the ordinance
went into effect. 1t is on accoun- of
the maintenance of an awning on the
building after the odinance went into
effect. Under counsePs own definition
of an ex post facto law, therefore, the
objection fails. 1t is not attempted to
make any act done before the passage
of the Act an offense.
1.-The only objection that can be made
with some appearance of foundation is
that. by requiring the placing of gut
ters on awnings that had heretofore
existed, the ordinance intrenches upon
individual property rights. Possibly
that is what counsel intends in relying
upon the approval of the plans and
specifications of the building by the
superintendent of Public Works. The
objection, however, loses its force en-
tirely from the fact that from the be-
ginning the maintenance of this parti
cular awning without a gutter such
as is required now by the ordinance
was illegal under Section $50 of the
Revised Laws of Hawaii. The ap-
prevail of the plans and specifications
by the Superintendent of Public Works
could not alter that situation. Such
approval could not have the effect of
making something prohibited by law
legal. The only purpose of such an
approval was the fulflment of a con-
dition precedent required by law be-
fore the building could be begun"
1t is contended further that avn
ngs extending over public sidewalks,
to which only the ordinance applies, |
are encroachn1ents into public domain,
the streets, over which the county has
control. and can exist legally only by
The sufferance and license of the gov
eminent. 1t follows that. where no |
such license was ever given. as here, |
he right Of regulation and even Of |
0f cryc1 aUCroa c Eu7aTrS hy the /