Davis v. Quinn , 43 Haw. 261 ( 1959 )

This is a case submitted upon an agreed statement of facts, pursuant to section 227-1, Revised Laws of Hawaii 1955. An actual controversy exists between the parties, as hereinafter stated.

The plaintiffs are citizens, duly registered voters and electors of and in the 8th, 10th and 17th representative districts, in pairs, one of the Republican and the other of the Democrat party, representing each of said districts.

The intervening defendants are citizens, duly registered voters and electors of the 2nd, 7th, 13th, 14th and 18th representative districts, in pairs, one of the Republican and the other of the Democrat party, representing each of said districts.

Also, others of them, being county attorneys not acting in their official capacities, but as citizens and duly registered voters and electors of the basic areas within which the representative districts represented by the other intervening defendants are situated, respectively, the island of Hawaii, within which is the 2nd representative district; the islands of Molokai, Lanai, Maui and Kahoolawe, within which is the 7th representative district; and the islands of Kauai and Niihau, within which basic area is the 18th representative district.

The defendants William F. Quinn and Edward E. Johnston are the duly appointed, qualified and acting Governor and Secretary of the Territory of Hawaii, respectively, and are parties to the submission by reason of the duties and powers which are vested in them as such.

The question in difference concerns the number of representatives for the respective representative districts, to be nominated by the political parties and to be elected as members of the house of representatives of the first state legislature at the elections to be held pursuant to Public Law 86-3 before the admission of Hawaii as a State.

It it required by Public Law 86-3 that these elections be held and the returns certified to the President of the United States prior to the issuance of the Presidential proclamation, which, under section 7(c) of the act, effects the admission of the State of Hawaii into the Union.

The election was called by a proclamation made and issued by the Governor of the Territory of Hawaii on April 15, 1959. Sections 6 and 7(a) of the admission act provide that the elections shall be called by the Governor within thirty days after official notification of the approval of Public Law 86-3, thus within thirty days after March 18, 1959. By the proclamation the primary election is called for June 27, 1959 and the general or final election for July 28, 1959.

Paragraph 8 of the Governor’s proclamation of April 15, 1959, sets out the number of members of the house of representatives by representative districts, designating the districts and number for each in accordance with Article XVI, section 1 of the constitution of the proposed state.

Under section 6 of Public Law 86-3 and section 10 of Article XVI of the constitution, the election is "for officers of all State elective offices provided for by the constitution of the proposed State of Hawaii.”

Plaintiffs contend that it is within the power and duty of the Governor of the Territory of Hawaii to reapportion the membership of the house of representatives to be elected at these elections, by the method set out in Article III, section 4 of the constitution (Hawaii) and section 55 of the Hawaiian Organic Act as amended by Public Law 895, 84th Congress, approved August 1, 1956.

It is agreed that this method, if legally applicable and if the number of voters registered at the 1958 territorial general election is used as a basis, produces the following result, that is, an increase in the number of representatives for the districts in which plaintiffs are electors and a consequent decrease in the number of representatives for certain other districts. The agreed statement sets out, in one column the number designated by paragraph 8 of the Governor’s proclamation of April 15, 1959, and in another column the number produced by reapportionment on the basis of the 1958 territorial registration, as hereinafter appearing.

BASIC AREA — ISLAND OF HAWAII

By consent of all parties, electors of the districts whose representation would be decreased (the 2nd, 7th, 13th, 14th and 18th districts) are given the status of intervening defendants and are parties to the agreed case. They contend that the proclamation of April 15, 1959 is correct and that the reapportionment sought by the plaintiffs would be in denial of their rights.

The reapportionment sought by the plaintiffs would reduce the number of representatives from the Hawaii, Maui and Kauai ''basic areas,” which basic areas have a certain significance in the application of the aforesaid method. The county attorneys of Hawaii, Maui and Kauai, appearing however as electors in propria persona and not as county attorneys, make the additional contention that the reapportionment sought by the plaintiffs would be in denial of their rights as electors in these basic areas.

The defendant officers and the intervening defendants all contend that the Governor of the Territory of Hawaii is without power to reapportion the state legislature. However, as to the Secretary of the Territory, under whose direction the elections will be conducted, this officer is proceeding in accordance with paragraph 8 of the proclamation of April 15, 1959, which designates the number of representatives for the respective districts in accordance with Article XVI, section 1 of the constitution. On that account, and because the Governor’s proclamation of May 1, 1959, had directed him to so proceed, the Secretary refused the demands made by the plaintiffs and purposes proceeding accordingly unless otherwise directed by this court.

By his proclamation of May 1, 1959, the Governor of the Territory of Hawaii purported to exercise all of the reapportionment powers he possesses and therein reaffirmed his position that, as territorial governor, he is empowered to reapportion only the territorial legislature in accordance with Public Law 895, approved August 1, 1956, amending the Hawaiian Organic Act, and that the provisions thereof with respect to reapportionment would be effective "* * * with respect to the Thirty-first Legislature of the Territory of Hawaii and applied to each Legislature thereafter” which under territorial status would be elected in November, I960.

The question before the court is whether the Enabling Act (Public Law 86-3) permitting Hawaii to vote upon statehood and elect state officials requires that members of the house of representatives of the first state legislature be elected on the reapportioned basis as required by section 4, Article III, of the constitution for the proposed State of Hawaii, or whether the reapportionment should go into effect in the elections of I960.

The constitution for the proposed State of Hawaii, hereinafter referred to as the "constitution,” sets forth in general terms the procedure to be followed in calling, holding, and making the terms of election of the first officials of the State and prescribes the term of office for the persons initially elected. It also provides that on or before June 1 of the year 1959, and of each tenth year thereafter, the Governor shall reapportion the members of the house of representatives in a prescribed manner. It then sets forth a formula to be applied within the four described basic areas.

The Enabling Act providing for the admission of Hawaii into the Union, subject to approval by the voters of the-Territory, sets forth the steps to be taken for such approval and for the election of state officers provided for by the constitution of the proposed State of Hawaii and for two senators and one representative in the Congress. The Act requires the Governor of the Territory, within thirty days after receipt of official notification of the President of the United States, to issue his proclamation for the election of such officers; the proclamation of the Governor of Hawaii shall provide for the holding of a primary election and a general election; that "Such elections shall be held, and the qualifications of voters thereat shall be, as prescribed by the constitution of the proposed State of Hawaii for the election of members of the proposed State legislature.” (Section 7.) (Emphasis added.)

The Enabling Act, in requiring elections for the first state legislature to be held as prescribed by the constitution of Hawaii incorporated the election provisions of the constitution into the congressional law.

"It is a general principle of law that in adopting a statute the Legislature or Congress may do so by reference, as well as by setting out the statute at length, and even where the statute adopted is the statute of another state or territory the principle is the same.” (Ex parte Burke, 190 Cal. 326, 328, 212 Pac. 193.)

The effect of such reference, as stated in Hasset v. Welch, 303 U. S. 303, 314, 82 L. Ed. 858, 866 (quoting from 2 Lewis, Sutherland Statutory Construction, pp. 787-88):

<>* # * js same as though the statute or provision adopted had been incorporated bodily into the adopting statute * *

Although the constitution of the proposed State of Hawaii would not normally and in due course become effective until Hawaii in fact and in law becomes a State, nevertheless, by the provisions of Public Law 86-3, the so-called "Enabling Act,” immediate effectiveness has — by incorporation therein by reference —been given to the provisions of said constitution in respect to how the forthcoming elections, of June 27 and July 28, 1959, shall be held and what shall be the qualifications of voters thereat. The constitution of the proposed State of Hawaii has not become effective, but only the language and provisions thereof pertinent and applicable to the elections, as though such language and provisions were set forth in full (in totidem verbis) in Public Law 86-3, and thus with the Act itself became effective upon the approval of the Act on March 18, 1959.

Thus, the Enabling Act of the Congress gave effect not only to the election provisions of the constitution but to the election laws of the Territory in general. This latter was made necessary because neither the Enabling Act nor the constitution contains all of the laws governing elections.

Obviously, the "laws relating to the election of members of the legislature at primary and general elections” refers to the Hawaiian laws, that is, existing primary and general election laws, and territorial laws enacted to regulate the election of the first state legislature.

Act 191, Session Laws of Hawaii 1955, incorporated in the election laws the constitution in lieu of the Organic Act. However, there is nothing inconsistent between the constitution and the Organic Act, as amended by Congress by Public Law 895, approved August 1, 1956, as both contain virtually identical provisions governing the number of members of the house, the boundaries of the representative districts, and the distribution and reapportionment of the representatives among representative districts.

As stated, the elections to be held in June and July are held only by the authority, and under the direction, of the Congress; that Congress has plenary power over the Territory as long as it continues a Territory is elementary and, as such, it may settle the terms of admission of a Territory as a State. (See Brittle v. The People, 2 Neb. 198.)

"The general rule that Constitutions and constitutional amendments take effect upon their ratification by the people, unless otherwise provided in the instrument itself or the resolutions submitting them, applies to sovereign states possessing the power to make and unmake Constitutions, but has no application to territories, as they do not possess the power within themselves to initiate a separate form of government.” (Farrar v. St. Louis & S. F. R. Co., 149 Mo. App. 188, 130 S. W. 373.)

The contention that the Congress cannot define the qualification of the voters of the first state officers ignores the fact of the plenary power of Congress over Territories. The case of Anderson v. Tyree, 12 Utah 129, 153, 42 Pac. 201, 204, states:

"The contention that Congress cannot define the qualifications of voters for the first state officers, elected conditionally, while the territorial condition continues, because no such power exists as to the states, is clearly erroneous. It is too much like comparing the authority of a parent before and after the majority of his child. While the territorial condition continues, whatever political power its people exercise must be by authority of Congress. In all governmental affairs, whatever the people of a territory do must be authorized, and they must abstain from doing what is forbidden. Their elections, even on subjects relating to statehood, are territorial' elections, and their voters are the electorate of the territory.”

Governor Quinn has caused such a reapportionment of the members of the house of representatives to be made among the representative districts as required by section 4 of Article III of the constitution for Hawaii. He has also issued a proclamation showing the result of such reapportionment, but he has stated that this reapportionment shall not be effective for the elections to be held in June and in July 1959, and has ordered that in those elections the members of the house of representatives be nominated and elected in accordance with the existing apportionment of the house of representatives. The Secretary of Hawaii has given notice that he intends to conduct the elections in that way, and the question is whether such postponement is properly taken under the laws of Hawaii and of the Congress.

So, the argument that the Governor has no authority under the state constitution to reapportion is fallacious in that the action of the Congress is a mandate to the Governor.

If the Governor cannot reapportion so as to take effect at the present elections (territorial), certainly he cannot make a reapportionment that will only take effect after Hawaii becomes a State. He acts as a territorial Governor under a mandate of the Congress to proceed with the elections in accordance with provisions of the constitution for the proposed State of Hawaii.

The Congress has both the power and intent to put into permanent effect the reapportionment provisions of the constitution. There is no reason why these provisions cannot be given effect during the transition period from territorial to state status.

The Enabling Act requires that the forthcoming elections for representatives shall be held according to the constitution and election laws of Hawaii, and the constitution requires that elections for the next five succeeding legislative sessions after June 1, 1959, shall be conducted on the reapportioned basis. The reapportionment made by the territorial Governor before such date pursuant to the laws of the Territory is, therefore, in accordance with the provisions of the constitution by reference incorporated in Public Law 86-3 and the mandate of Congress therein and in Public Law 895.

Not to make the reapportionment would ignore the plain language of the constitution, of the Organic Act and of the Enabling Act of the Congress, and defeat the intent of the people of Hawaii as expressed in the approved constitution, and the acts of the territorial legislature as expressed in the laws of 1955.

Clinton R. Ashford and C. Nils Tavares (William B. Stephenson, A. James Wriston, Jr., Tobias C. Tolzmann & Maurice Sapienza with them on the briefs) for plaintiffs. Rhoda V. Lewis and Jon Chinen, Deputy Attorneys General {Henry H. Shigekane & Yoshio Shigezawa, Deputy Attorneys General, with them on the briefs) for defendants. Harold L. Duponte, intervening defendant, filed a brief in propria persona, but did not argue. T. S. Goo and Ernest Y. Yamane filed a brief for Yoshito Tanaka, Toshio Kabutan, Ernest Y. Yamane, Moño Omori & T. S. Goo, intervening defendants, but waived argument. Jack H. Mizuha, Attorney General, present.

Plaintiffs are sustained. Let- judgment issue substantially as provided in all of item X, pages 17-19, of the Submission, other than the last paragraph thereof on page 19.