The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-09-04
Municipal Act Sustained

The Territorial Supreme Court yes
terday in a unanimous decision by
Chief Justice Hartwell, sustained the
demurrer to the petition for mandarin:
in the municipal act case, and recon-
mended to the Circuit Court that the
bill be dismissed.
This was a proceeding brought by
John Emmeluth as a citizen and tax
Ipayer to test the legality of the act
The decision of the Supreme Court sus
tains fully the validity of the act, the
court finding abundant reasons, appa-
rently, for so doing. The following is
the decision:
The petitioner, as a citizen of the
of the County of Oahu, taxpayer and
elector in the Territory and County,
fled petition before the circuit judge
for a writ of mandamus directed to the
Board of Supervisors of the County of
Oahu commanding them forthwith to
proceed and issue a proclamation con-
lcerning a county election for the Coun-
ty of Oahu, and to transmit copies of
the same to the several boards of in
speetors throughout the County of Ca
hu and to cause the proclamation to
be posted in the manner required by
law and to do all acts and things re-
quired of them under and by virtue
of an act creating counties within the
Territory of Hawaii, and providing for
the government thereof passed April
II, 1905, setting forth in his petition
that the Board of Supervisors had neg
leeted and refused to issue a proclama-
tion concerning county elections and
to post the proclamation in the manner
required by Sec. SO of he act, and
that they declined and rcLnssd at any
time to issue the proclamation, and as
the petitioner is informed and believes
and so alleges viii not issue it at least
sixty days before the general election
or at any other time as by the act
required, the Board of Supervisors
that the act is repealed by an
act entitled can Act Incorporating
the City and County of Honolulu ap-
proved April 80, 1907, whereas the pc
tition as amended alleges that this
later act is unconstitutional and void,
being in conflict with the provisions
of an act of Congress entitled can
Act to prohibit the passage of local
and special laws in the Territories of |
the United States, to limit Territorial i
and for other purposes,
approved July 80, 1886, "a Stat. at |
Large 40, and also in conflict with the |
Organic Act of the Territory, as an !
attempt to grant TO corporation spe /
sial and exclusive privileges and i'm
nunities without approval of Congress,
md that it requires different qualifica
ions for electors under the act than
ire provided for in the Organic Act,
md disqualifes and DISTINGUISHES a
arge portion of the qualified electors
If the Territory and County; that the
alter act is also unconstitutional in
hat there are numerous private agri-
cultural corporations within the boun-
iaries of said municipal corporation
lot subject to control on the part of
he Territory except in the exercise of
,Olice power their charters being con-
raets within the meaning of the con-
raet clause of the constitution, and
hat the act is void for the further
eason that municipal taxes may be
imposed on lands strictly rural in char
cter and therefore not capable of re-
y
eceived from municipal organizations,
nd also because the boundaries of the
municipal corporation established by
he act are inaccurate, indefinite and
The defendants demurred to the pc
ition on the ground that it does not
tate facts sufficient to entitle the pc
itiOner to a writ of mandamus as pray
70 iaf hos
The circuit Judge reserved for the
consideration of this court the follow
ng questions arising under the petit
ion and demurrer, for that purpose
eporting the same to this court, name.
y:
/. Does the petition for a writ of
lsndamus as fled in said proceeding
tate facts sufficient to entitle the petit
Toner John Emmeluth to a writ of
1andamus as prayed for, or to any re-
ef whatsoever
?. Has the Act of the Legislature
f the Territory of Hawaii, entitled
An Act creating Counties within the
territory of Hawaii and providing a
overnment for the same" been and
ow is repealed by an Act of the Leg
stature of the Territory of Hawaii,
Untitled can Act Incorporating the
'ity and County of Honolulu approx
d April 30th, A. d. 1907, and is the
aid act entitled ''An Act Creating
'Ounties within the Territory of Ha-
7aii and providing a government for
he same void and of no effect and
ot binding upon the said respondents
n any manner or form2
3. Is the said Act of the Legislature
f the Territory of Hawaii. entitled
An Act Incorporating the City and
'ounty of Honolulu approved April
9th, A. d. 1907, unconstitutional and
old and of no effect, the same being
n conflict with and opposition to an
Yet of Congress of the United States
f America, entitled can Act to Pro.
-ide a government for the Territory
f Hawaii, - inasmuch as it is
(D An attempt on the part of the
of the Territory of Hawaii
o grant to corporation special and
Exclusive privileges and immunities
without the approval of Congress.
(2) That it requires other and differ
mt qualifications for the electors under
aid Act than are prescribed and pro-