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EVENING nUM.ETlN, HONOLULU, T. If., THURSDAY, SEPT. 3, 190S.
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The Old Standard for the best of things in the W
H eating and drinking line. Just ask anyone B
11 'where the H
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liij Vlllwll gi
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Ml is and they will tell you. The oldest estab- jl
jf lisheel restaurant in the city. For tasty meals jjE
jB at the lowest prices come and visit us. jS
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- King St., around tho corner SI
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WHY JAPAN HAS
POSTPONED ITS
GREAT EXPOSITION
Editor EvonliiK Hullo t In:
Enclosed iileaku tlnil n translation of
a cablesrani recehod nt tills (Junnl-
ntu, wmeitnlnuiK to tho projected In
ternithmal Exposition to be held by
postponement In 1017, tho nflUlh an
nlveis.iry of II. I. .1. M.'s nccesslun to
the throne.
I linso tlio honor to ho. dojr sir.
Your most obedient Horvant,
KA1IAC1II AUK.
Acting Consul ilorvcril for Japan.
(TiaiiHlntlui)
The Japanese fioverntnent havo di
rhlcil in post luiiio until 1017 tint Oinuti
l'tim'ltlf n projected In 1012 widei
tlm following eoiiBldciatlons:
On iu examination and a now anal
vbIk to which tin- .liiihiiioip have foiinii
It necessais to subject tho project of
Hip Growl Exposition of ltlf.'. li-ive
convinced them that the Inteneulni;
tlmo of three and n half jeani U In'
millcloiit Tor the completion of all tho
various picpatatlonH nud oik which
nro essential to Iho siiccesKful malla
tlon of 'tho iinileilakiiiK. It Is Impos
sible, 'vltMn tho nlloteil tlmu, to pro
jittro for.tho oxhlhlt without illntiiiu'ng
nuny other iicllWtleB of lliu cTnumy,
nor Is tlieie KUfticlcnt time W whUn
to pteiuro the Exiosltlmi inimN, to
mcit Kipoltlon biilldlnsi or In in ikJ
niraiiRemenls npieswiry ior tnc "iui
able nieaininodatlou and coiiN"iil"u-f
for the visitors under these (renin-
stances. It Ik deemed bo.it llici"fo,c.
lo make an .Inevitable p nupoticriiimc
nt this time ratlior llian d-div union
iililil an adjournment tvoiti 1 piuii.e :n
eoiui'iilaneo mi J bo proju llclil to
ilKht InleiPBtB. AKiln, tlio fnpaiicio
(lovci anient, following tho ury com
niendab'i' custom, doirlio the projected
Kxnositlnii lo bo commemorative of
rin uiiui IrltniB event in their hlBtoiy In
1917 wlib h will be'celebtalod tlio nr
tlotli nnnivrsary of tho iliupernr'a Access-Inn
which will In foi all his sub
jects, n seahon of lojolriiif,, and It 'is
iiiiiohim1 io take ailvnutiit;n of that
Irippy "pceatlon to Inaugurate tlio Exposition.
UPHOLDS MUNICIPAL ACT
(Continued ftutn irze 1)
.Municipal coipor.itlons cieatlon In Hawaii.
Sec ." of tho OiRiinlc Act authorizes the cieatlon of county
and elt nmnlclpallllcR by bpeclal ait, stipoisedlnB. In lespect
to Hawaii, the genet -il piohlbltlon of ait of July 30, 1S8U, ch.
&1S. The puivlslons In Sec. ft 5 piohlbltliiK tho KiantluK of ptl-
vn to chin tuis and upeilal fianclilses do not apply to municipal
lorporatlonH.
CnnFtltiitlonal law htiitute void In part.
, The nunllflintloiis for voters under tho Municipal Act (S. E.
1007. Ait US) bclnc; in conflict with those dclliied by tho Or-
Eanlc Act may bo dlmcRaided without InipaliltiB in tho validity
or the icninlnder of tho act,
OPINION Or THE COUIIT UY HAHTYVELX, CI.
'I'Iip iclitiotier, a", a I'itistt-n of tlio rni'icd StntiN nml I lit' Tim
ritorv, nml of tlio ('oiuitv (if Onliii, u ttiNpii.vci mill elector in the
Territorv nml ('oiint.y, filed a petition before tlio circuit jiulfie
for it writ of liiiiiidniiiiii directed to the hourd of Mipervi-ors of
the County of Oaliu coiiiiiiiiiidiu tlicui forthwith to niocci'il
riii! insue iijiroc'Iiiiiintion eoucorniiif; u county election for the
County of Otihii, mid to transmit cojiiis of the same to tho m-v-er.il
lioauli of iniectors throiiliout the. County of Oahu ami to
edii-c tli )i'oclnuiiitioii to In- jucted in the manlier required hy
law mill to do all acts and things rcijuirctl of tlieni under iiid hy
w'rtuo of an net ciciitiuj; counties within the Territory of
Hawaii, and providing for the gnrvrmui'iit tlieieof ia-ed April
II, l!H)r, K'ttiiifr forth in hii petition that the hoard of Miper-vi-ors
had neglected mid refu-ed to issuo a iroclaniiilioii con
((riling county elections mid to ptM the jiroclainaliou in (he
liiauner leipiiicd hy Sec. :il! of the act, nud that they declined
and refused at any timejo i,ue the proclamation, and as tho
petitioner is informed and believes and fo alleges will not issuo
it nt le.it sixty diiVh before the general election or at'aiiy other
time us hy the net required, tlio hoard of supervisors claiming
that the act is repealed hy nu act entitled "An Act Incorporating
the City nud County of Honolulu," approved April M, l'.lOJ,
whereas the petition as amended alk'acs that this later net is
lincoustilutiounl and void, being in conllict with (ho provisions of
mi act of Congress entitled "An Act to prohibit the passage of
local and special laws in the Territories of the Cnited .States, to
limit Territorial indebtedness, mid for other purposes," ap
proved duly JIO, ISSli, l' Stat, at Largo 170, and also in cou
llicl with the Organic Act of the Territory, as nu attempt to
grant to a corporation upcci.il and exclusive privileges and
immunities without approval of Congres, and that it ieqiiiro
different qualiliciitiorw for electors under tho act than tiro pro
vided for in the Organic Act, and disqualifies and disfranchises,
ti Ijm ia poiliou of the (pialilied electors of llie Terrilon and
Couiit ; that the later act is nlo unconstitutional in that thero
are numeious private agricultural corporations within the boun
daries of said munieip.il corporation not subject to control on
the pari -f the Territory except in the exercise of police power,
their chatters being contracts within the meaning of the con
tract clui-p of the constitution, and that the act is void for the
further reason that municipal tuxes may be imposed on lauds
strict K i Ural in character and therefoie .not capable of receiv
ing benefits and advantages usually received from municipal
organisation-!, and also Wause the liouiidarics of the municipal
corporation established by the act are inaccurate, indefinite and
uncertain.
' The defendaiils deinuricd to the petition on the ground that
it does not stale facts suflicient to entitle the petitioner to a vr;t
of maudaiiius as prayed for or to any relief whatsoever.
The circuit judge reserved for the consideration of this court
the following questions arising under the petition and demurrer,
for that purpose reporting the same to this court, namely:
. Does the petition for a writ, of uuiudamus as Hied in
-aid proceeding stale facts sutlieient to entitle the petitioner
dohn Knimelitth to a writ of mandamus as prayed for, or to any
relief whatsoever?
2. Mas the Act of the Legislature of the Territorv of
Hawaii, entitled "An Act creating Counties within the Territory
of Hawaii and providing a government for the same" Wn anil
now is repealed hy an Act of the Legislature of the Territory of
Hawaii, entitled "An Act Incorporating the City and Count'v of
Honolulu" approved April JJIItli, A. 1). IU07, mid is the said' act."
entitled "An Act Creating Counties within tlio Territory of
Jluwaii and providing a Government for the same" void mid of
no effect and not binding upon the said respondents in any man
ner or form I
.'!. Is the said .ct f tin- Legislature of the Territory of
Hawaii, entitled "-An Act Incorporating the City and Countv of
Honolulu" approved April :i0lb, A. I). IH07, unconstitutional
and void nml of no effect, the same being in conllict with and
opposition lo an Act of Congress of the United States of Amer
ica, entitled "An Act to I'rovido a Government for the 'jVn-itor
of Hawaii," inasmuch as it is
( I ) An attempt on the purl of the Legislature of the Terri
toryof Hawaii to grant to a corporatibn special and exclusive,
privileges and immunities without the approval of Congress.
('') That it requires other ami 'different qualifications for
the electors under said Act than are prescribed and provided fur
in said Act of Congress mid disqualifies and ilisfriiiichises a
.large portion of the duly qualified electors' of said Territory and
snid County of Oahu.
I. Is the said Act unconstitutional in thut.there are numer
ous private agricultural corporations embraced within the Imiiiii
daries of said municipal corporation, not subject to control on
the pail of the Territory, except in the c.crciu of the police
power, their ehaiters being contracts within the meaning of the
contract clause of the federal constitution which the Stales nud
Teiritories are prohibited from impairing i
.". Is the said Act void for inasmuch as,
(U That municipal taxes may be imposed on lands strictly
rural in character and therefore not capable of receiving the
benelits or advantages Usually derived from municipal organiza
li.'ts'? tfit44&
(2) That the boundaries of said Municipal Corporation
sought to he established hy said Act are inaccurate, indefinite
ami uiiccitaiii.
i. Should the Writ of .Mandamus bo issued as prayed for.
The demurrer does not specifically set up, the defendant- say
it wnsnot intended to s,. np, the plaintiff's incapacity o bring
the suit. If theobjiclioii had been raised he might have amend-
il by avi rriugau impending unauthorized expenditure of public
money, thus bringim; his case within the rule ju Castle r, ,SVcc
") of lite Tciritory, Hi Haw. 7t!H, 771. Wo are not inclined'
to hold that a private citizen who does not claim that his prop
ertv rights are in danger of being injuriously affected can obtain
an adjudication that a statute iH unconstitutional, since as fat
as political questions are concerned lie does not represent the
public as in case of unauthorized expenditures. Our eases have
not gone to that extent, and we are not disposed to extend their
authority. See Tcirilun r. Miiuel, IS Haw. -102, 40 1, in which
. .iMvas held that one whose rights were not. ajfected by portions
of a Inw regulating hales of intoxicating liquor claimed by him
to Iw unconstitutional was not entitled to be heard upon the
question. I'lider the circumstances, and es)'cially as thero aio
other sutlieient grounds for sustaining the demurrer, wo do not
pass upon the plaintifi's right.
Another question not raised by tho pleadings hut argued by
counsel who by consent of, court appeared against the petition,
is whetlier the Territory ought to have been made a party in
order that the attorney general should represent the interests
of the public. The st.ilule, Sec. 1M04 IC L., prescribes that the
writ "may be directed to public ollicers to compel them to fullil
any of the duties attached to their oilice or which may he legally
i (-quired of them." The county attorney, who appeared for the
supervisors, is "a deputy of the attorney general of the Terri
tory" (See. ti.'. County Act), as well ns "legal adviser of tho
boafd of supervisor," (Sec. ICI, lb.) There is no reason why
the attorney gi ral should not have been heard without the for
mality of making the Territory a parly.
It is further claimed by the counsel that the petition is pre
mature, since for all Ihnt appears the defendants mav yet pro--cced
under the County Act. It is true that they would be at
liberty to change their purpose, they might Im advised to do so.
.Mandamus, it is s-iid, "is never granted in anticipation of uu
omission of duty, bul only after mi actual default." A'.r pitilr
Culliiiji, !1 C. f 20. There is no occasion, however, to'rttle
upon this objection or to miv whether a refusal made in advance
of the time for performing the alleged duty would be u waiver
of tho objection.
The principal question in the case, although not expressly
icscrved.Js whether the act of duly :i0, 1SS0. ch. SIS, 2 t Stat. .it.
Largo 170, is in this ease applicable to Hawaii in declaring
"that the legislatures of the territories of tho United States now
or hereafter to Ik organized shall not Iss local or special laws
in miy of the following enumerated si i, tint is to say," speci
fying after numerous other instance- si eh i granting'divorces,
changing names of persons or places, hi--1 ,' oul, opening or alter
ig roadsiu- highways, icgiilatitn; ei-aty or township affairs,
practice in courln of justice, jurisdiction "of duties of justices of
the peace, police, magistrates nud constables, providing for
management of common schools, "incorporating cities, towns or
villages, or changing or amending the charter of any city, town
or village, ' or "granting to any corporation, association or indi
vidual any special or oxcliisio privilege, immunity or franchise
v.hulever, and Vu iding "in nil other eases where a general law
can be made applicable no special law shall lie enacted in any
of the terriloiies of the Tnilcd Stales by tho territorial legisla
tures thcieof." ,
Our Organic" Act, Sec. S.'i, nlo provides that "the legislature
'hull not grant lo any corporation, association or individual any
"pieial or exclusive privilege, immunity or fraiichi-e without
the approval of Congress nor shall it grant private charters,
but it may by a general act permit persons to associate them
selves together as I iodic corporate." Section IShll, l S. Hov.
Stats., enacts that "legislative assemblies of the several terri
tories shall not giant private charters or special privileges, but
they nui, by general incorporation ilcts, permit persons to asso
ciate themselves together as bodies corporate." Congress hns
declared that these words in See. 18811 "shall not lie construed
as prohibiting the legislative assemblies of the several territories
of the United States from creating towns, cities or other munici
pal corporations, and providing for the government of tho same
and conferring upon them the coporate powers and privileges
necessary to their local administration by either general or spe
cial acts." Act .lime S, IS7S, eh. KIS, 20 Stnt. at Large 101.
The provision above cited from Sec. fir, Organic Act, refers
to corporations other than county, town and city municipalities
which the act, See. 50, expressly authorized the legislature to
cieale. Tho authority for creating such municipalities is not
limited by requiring that they shall not bo created by special
law, which was a method "in general use in this country during .
the last century, and indeed is quite commonly employed at
present, fit, states even where the constitution forbids the legis
lature to grant any special charter of incorporation, it has been
l tiled that such a constitutional inhibition does not relate to pub
lic corporations." Ingersoll I'ub. Corp. 1.'17. "To hold that,
the legislature could not enlarge the corporate limits by an act
passed for that purpose, would lie to deny that, it could create or
abolish for tho greater includes the lesser in law as in mathe
matics." W'iUuims v. Xasheillc, 8!l Tenii. IUI. We do not
think that the act of ISSt! in prohibiting territories then and
thereafter to be organized from incorporating cities by a special
law limits the general power subsequently given by the Organic
Act of Hawaii to creato city municipalities. There are several
leasons for this view. To hold otherwise would be limiting tho
general powers given by the Organic Act or in many of the laws
of Hawaii continued in force by the Organic Act, as, for in
stance, those which relate to public highways. The word "cre
ate" in See. SO is appropriately used in respect to involuntary
municipal corporations established by special law, while some
such term as "authorizing" would be more often used to describe
the establishment of iuuuiciji.il corporations voluntarily accepted
by j.opular vote. In view of the practice on the subject as above
mentioned it cannot be said that there is mi implied limitation
upon a gejieral wer to create city municipalities. Again, a
special law upon the subject is more appropriate to older com
munities, Mich as that of Hawaii, while a general law appears
to ho regarded as more aihiptul to.newly settled territories and
states. Conditions in Hawaii are not such as to make it obvious
that the territorial legislature should not under its general power
to create cities do so by special enactment fitted for the condi
tions in each particular eae, nml we think that if Congress had
intended such limitation it would have been expressed in the
act itself.
There are many provisions in the chapter of the U. S. Tlcv.
Stats, entitled "provisions common to all the territories," Sees.
ISIiil-l.S'.l.'i, which have been superseded or modified by subse
quent acts of Congress iclatiug to territories not mentioned in
tjiat chapter. Upon the whole, we have no doubt that the last
mid effective expression of congressional will upon this subject
is contained in the expiess and unlimited power granted by tho
Organic Act.
It is admitted that the Act incorporating the City and County
of Honolulu requires other and different qualifications for elool
ors than are prescribed in the Organic Act. Section 00 of the
Organic Act provides that in order ,to bo qualified to vote for
representatives a person shall prior to each regular election,
during tho time prescribed by law for registration, have caused
his naine to he entered on tho register of voters for representa
tives for his district, and Kiel ion 02 provides that in order to
bo qualified to vote for senators, mid for voting in all oilier
ilcetivns in tho Territory of UnWuii, a person must possess all
iho qualifications ami be subject to all tho conditions required
of voters for representatives. IJy Section (M of the Organic
Act, the rules and regulations for administering oaths and hold
ing elect ions set foith in liallou's compilation, civil laws, appoi
dix, and the list of icgisttring distiicts ami precincts appended,
arc continued in force with certain designated changes. Sec
tion !1S, R. T.., provides that the boards of registration shall nicer
within their respective districts at such times lietwcen the hist
day of August and the 1 0th day of October in the year 11)00,
nml between .such days in each second year thereafter, as many
times as nui be necessary to enable them to register all persons
entitled to icgister, and Section !I0, I!. L., providci that nt any
intermediate special election llie register of voters at th h't
preceding general election shall be u-ed without change.
Sections -12 and 70 of the Act incorporating the City and
County of Honolulu are in conllict with the provisions of the
Organic A?t relative to the qualifications of electors and abso
lutely void. Hut the eitfiie act is not thereby made inoperative
or invalid, the provisions of the Organic Act on the subject of
qualifications for electors being ns effective as if especially
expressed in the Municipal Act, particularly in view of the fact
that in Sec. -10 they are declared to lie applicable. i
There is no merit in Iho petitioner's claim that the act is
void because it impairs contract obligations of private corpora
tions or hecauso it authorizes taxation of rural lands incapahlo
ofroeoiving tho usual benefits of municipal organizations, or
because the boundaries of the municipal organizations are inac
curate, indefinite or uncertain.
The circuit judge is advised that upon the foregoing consid
erations the defendaiils' demurrer ought to he sustained and the
plaintifi's petition dismissed.
II'. S Ediuijn for petitioner.
K' "'" ''''''''''""' tliiily rouiilji nllimu'ji, for Iho defendaiils.
.-. i. niuywunj, iy leave ot court, against the petition.
LEAGUE STANDING AUG. 2G.
National League.
Clubs. Won. Lost. I'et.
Now York (18 42 .CIS
Plttsburi? liO 45 .Ml
Chicago B7 17 .HS7
Philadelphia 59 40 .511!
Cincinnati 5(i 50 ,lt7
Iloston 10 5 .420
St. l.oills 42 70 .375
lliooklyn, .'.40 70 ..'IUI
Clubs.
American League.
Won. Lost. Pel.
"etinlt 07 43 .009
Cleveland 01 40 ,5CG
St- I.ouls C4 CO ,503
ClilciiRo 03 50 .558
Philadelphia 53 50 ,480
Iloston 03 CO .400
W.iBhlnKlou 44 us ,404
Now Yoik 37 74 .333
Pacific Coast League.
Clubs. Won. Lost. Pet.
I.os AliKi'lcs 72 64 .571
Han Kranclscn 07 07 .500
Poitland 01 01 .500
Oakland 50 75 ,427
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