Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1917-04-06
P[EBISCITE PROHIBITION BILL IS
UPHELD BY THE ATTORNEY GENERAL
Stanback Prepares Brief Which Uphods Senate Measure
and Severely criczes Hou Use judiciary for Its Action in
Substituting Another Measure for II Upon the Ground That
Original Plan Was Illegal

by plebiscite, IL Illegal In respect TO It's
provision which holds that statute
contingent upon a vote Of the people
Is Illegal, Attorney General !. M. Stain.
back has filed an opinion with Presi-
dent Charles r. chillingworth Of the
senate. 81
Stainback maintains that status
providing that e shall take effect upon
a vote Of the people Is not unconstitu'
tional as a delegation Of legislative
power. The opinion follows In full:
Honorable Charles r. Chillingworth,
President Of the Senate,
Territory OF Hawaii
Sir: Pursuant 70 your oral request
made today, I have examined the Re
port Of the House Judiciary Committee
ON Senate Bill No. 80.
The report in substance holds that
the provision making q statute contin-
gent upon a vote Of the people Is
illegal.
@It attempts TO point out a distinction
between the rights OF state Legisla.
lures and the Territorial Legislature
to pass such laws AZ the one In ques.
ton, the argument being that D Ter
ritory has no inherent power Of Gov
eminent, but only such powers as are
delegated by Congress, while State
has all Government powers not delega-
ted to the United States; as stated in
the report:
ANY act such as initiative. refer
endum or other modern form OF
government which would be legal In
a state, cannot be exercised within
a Territory unless expressly grant
ed Ry the power that creates con-
stitution. TO wit. the United States
Congress.
This argument Is misleading. for
the very simple reason that Congress
has provided by Section IS Of the
Organic Act,
That the legislative power of the
Territory shall extend to all right
full subjects of legislation not neon
sistenf with the Constitution and
laws OF the United States locally
applicable"
fSee cases cited in note 2. Sec. S.
Organic Act. as appearing on page ~,
I'm other words, IA the matter OF
Law making 3 state I4gislalure Isl
limited " the Co11litulion ot The
state, ana ne United states Co1stI.
tuition, and our Territorial Legislature
Is restrained only 6y The United States
Constitution and the Organic Act
The question then resolves itself
into the proposition as 20 whether q
statute which provides that Il shall
take effect only upon its being approy-
ed by q majority Of the voters Is 2
rightful subject Of legislation. not In
consistent with the Constitution and
laws Of the United States locally appli-
cable.
Instead Of stating that ANY act
such as initiative. referendum or other
modern form ~ Government which
would be legal In state. cannot be
exercised within q Territory unless
expressly granted by the power that
creates constitution, 70 wit, the Unit
ed States Congress-. would say that
any such act Is legal unless texpressly
or implicitly prohibited By the United
States Constitution or the Organic Act.
There IL no express prohibition IN
the United States Constitution or the
Organic Act Is there any implied
prohibition?
when we examine the authorities,
we find. as stated Ia IS l. r. A. lis,
The right Of the legislature to
refer TO the people themselves the
question Of giving effect to bropos-
cd statute Is one that has been de-
MED In q considerable number OF
cases in which the question was
not fairly involved, as well as In a
very few cases IN which Il was In
,volved. Nearly all the cases In
which this power Is denied have
been founded on the Pennsylvania
case OF Parker " Com. 6 Pa. sol.
and the Delaware case Of Rice VI.
Foster, { Harr. ks2. which. although
decided on the broad ground that
The legislature cannot refer statute
the people. were In fact local OPP
n cases and have been. on the ex-
NESS question involved In them.
very generally repudiated by later
cases, the rennsylvania case being
expressly oyerruled.
~Since the early cases started out
with the denial Of the right Of the
Legislature TO pass local option
laws which are now almost every
where held valid. and these local
option cases have been largely re-
lied on as authority for the general
doctrine that the Legislature cannot
refer 70 vote OF the people, the
question OF the approval Of Law.
these general expressions. found by
way OF recital in various cases, can
not be regarded as Of very great
weight.
SIN the Opinion Of the Justice. 100
Mass. 5S5. cited in the report Of the
House judiciary Committee. Justice
Holmes, next 10 Chief Justice White.
the abIest constitutional lawyer now
on the supreme Court Of the United
states, gave a very vigorous dissent
ing opinion. Judge Cooley whose
Constitutional Limitations is still the
authority on Constitutional Law, in
spite Of decisions 70 the contrary up
holds the constftrtionality Of such an
act. and quotes with approval the Wis
cousin case Of Smith V. GAINESVILLE, Is
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