Employees' Retirement System v. Ho , 44 Haw. 154 ( 1960 )

OPINION BY

MARUMOTO, J., IN WHICH WIRTZ, J., JOINS.

Employees’ Retirement System of the State of Hawaii, plaintiff, and Raymond Y. 0. Ho, Director of Budget, State of Hawaii, defendant, are parties to a question in difference and have submitted the question to this court on agreed facts under R.L.H. 1955, c. 22Z.

Plaintiff is a public agency, having the powers and privileges of a corporation, and is the holder of $29,000 of general obligation bonds issued by the Territory of Hawaii. Defendant is the State officer who, with the approval of the governor, is authorized to issue general obligation bonds.

The question in difference is whether defendant may legally issue $11,000,000 of general obligation bonds, of which $6,000,000 was authorized by Act 22, and $5,000,000 was authorized by Act 23, First Special Session, First Legislature, State of Hawaii. The governor has approved the issuance of such bonds, and defendant will issue them, unless this court orders otherwise.

Plaintiffs’ position is that defendant cannot legally issue such bonds because the authorizations contained in Acts 22 and 23 violate article YI, section 3, paragraph 2, of the State constitution, and that the issuance of the bonds under such defective authorizations will jeopardize the security of the bonds that it holds. The mentioned constitutional provision reads as follows:

“Sixty million dollars is established as the limit of the funded debt of the State at any time outstanding and unpaid. Bonds and other instruments of indebtedness in excess of such limit may be issued when authorized by a two-thirds vote of all the members to which each house of the legislature is entitled, provided such excess debt, at the time of authorization, would not cause the total of state indebtedness to exceed a sum equal to fifteen percent of the total of assessed values for tax rate purposes of real property in the State, as determined by the last tax assessment rolls pursuant to law.”

Defendant’s position is diametrically opposed to that of plaintiff. Thus, an actual controversy exists between the parties.

The question in difference is such that it might be the subject of an action in a circuit court for a declaratory judgment under R.L.H. 1955, c. 228. The submission is a proper one under R.L.H. 1955, c. 227, and we have jurisdiction.

At the time of the enactment of Acts 22 and 23, the situation of the State regarding its bonded indebtedness was as follows:

1. The total of the assessed values for tax rate purposes of real property in the State, as determined by the last tax assessment rolls pursuant to law (hereafter referred to as “assessed values”) was $1,152,397,810, fifteen percent of which was $172,859,671.

2. The following bonds issued by the Territory were outstanding and unpaid:

(a) General obligation bonds in the sum of $115,262,000. These bonds will hereafter be referred to as “outstanding Territorial general obligation bonds.”

(b) Highway revenue bonds in the sum of $49,225,000. These bonds were issued under R.L.H. 1955, § 137-80, and P.L. 716, Eighty-fourth Congress, Second Session, and will hereafter be referred to as “highway revenue bonds.”

(c) Aviation revenue bonds in the sum of $14,000,000. These bonds were issued under R.L.H. 1955, § 137-94, and P.L. 85-534, Eighty-fifth Congress, Second Session, and will hereafter be referred to as “aviation revenue bonds.”

3. There were also outstanding authorizations for the issuance of general obligation bonds contained in several and separate acts of the Territorial legislature (hereafter referred to as “Territorial general obligation bond authorizations”) in the total amount of $58,494,753.

Plaintiff contends that the State debt at the time of the enactment of Acts 22 and 23 included the outstanding Territorial general obligation bonds, highway revenue bonds, aviation revenue bonds, and Territorial general obligation bond authorizations. If such contention were valid, the State debt would have amounted to $236,981,753, or $64,122,082 in excess of fifteen percent of the assessed values, and the legislature would have been precluded from lawfully enacting any legislation authorizing the issuance of any additional general obligation bonds.

Defendant, on the other hand, contends that the State debt at the time of the enactment of Acts 22 and 23 consisted only of the outstanding Territorial general obligation bonds and that none of the other items should be included as a part of such debt. Under such contention, there would have been the difference between $172,859,671 and $115,262,000, or $57,597,671, as a margin for the issuance of additional bonds within the State debt limit, and the legislature could lawfully have authorized the issuance of additional general obligation bonds up to $57,597,671, by a two-thirds vote of all the members of each house.

In this opinion, the terms “State debt” and “Territorial debt” will be used frequently. So, here at the outset, we shall state the sense in which the terms will be used. They will not be used as including every type of indebtedness of the State or of the Territory. The term “State debt” will be used as including only the types of indebtedness which are required to be included in the computation to determine whether the total of the State indebtedness is within the debt limit prescribed in article VI, section 3, paragraph 2 and the term “Territorial debt” will be used as including only the types of indebtedness which were required to be included in the computation to determine whether the total of the Territorial indebtedness was within the debt limit prescribed in section 55 of the Hawaiian Organic Act and amendments thereto.

The question in difference has arisen because the fiscal situation of the State at the time of the enactment of Acts 22 and 23 differed considerably from the fiscal situation of the Territory on December 31, 1949, and contained elements which were not within the contemplation of the constitutional convention. The convention based its deliberations on the information that it had regarding the fiscal situation of the Territory on December 31, 1949. Constitutional Convention of Hawaii, Standing Committee Report Ho. 51, Exhibit S.

The following table shows a comparison of the fiscal situation of the Territory on December 31, 1949, with the fiscal situation of the State at the time of the enactment of Acts 22 and 23:

Fiscal situation of Territory December 31, 1949

Fiscal situation of State when Acts 22 & 23 were enacted

Outstanding Territorial general obligation bonds..f 14,936,000 115,262,000

Outstanding highway revenue bonds .................. None 49,225,000

Outstanding aviation revenue bonds .................. None 14,000,000

Total of outstanding bonds ..f> 14,936,000 f 178,487,000

Territorial general obligation bond authorizations | 41,076,220 $ 58,494,753

Assessed values ....$333,643,899 $1,152,397,810

Fifteen percent of assessed values ..$ 50,046,585 $ 172,859,671

The question in difference revolves around article YI, section 3, paragraph 2. Consequently, we shall examine it to see what it means.

In the construction of a constitutional provision, the rule is well established that the words of the constitution are presumed to be used in their natural sense.

The rule was well stated by Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 188, as follows: “As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.”

Mr. Justice Story stated the rule in his Commentaries on the Constitution of the United States, Fourth Edition, vol. I, § 451, as follows: “* * * [E]very word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.”

The opening sentence of the provision establishes |60,000,000 as “the limit of the funded debt of the State at any time outstanding and unpaid.” The meaning of the sentence seems clear enough from its language. But the term “funded debt” may require some discussion.

In Palgrave’s Dictionary of Political Economy, 1923 Edition, it is stated: “This expression [funded debt] was originally used as a description of debt, the service of which was secured by a special fund (e.g., the produce of a certain tax). But gradually the meaning acquired by the term was that of debt raised for permanent purposes and either payable at a distant date or not repayable at any definite date.”

The definition in Webster’s New International Dictionary, Second Edition, Unabridged, is that funded debt is a debt converted into one “that is (as originally used) permanent or runs for a fixed, usually a considerable, period of time, and bears regular interest; existing in the form of obligations to pay interest, and in the case of bonds, the principal also, at certain fixed dates.”

Black’s Law Dictionary, Fourth Edition, states: “As applied to states or municipal corporations, a funded debt is one for the payment of which (interest and principal) some fund is appropriated, either specifically, or by provision made for future taxation and the quasi pledging in advance of the public revenue.” This statement finds support in Ketchum v. Buffalo, 14 N.Y. 356; People v. Carpenter 52 N.Y.S. 781; Corporation for the Relief of Widows & Children of Clergymen v. City of Philadelphia, 317 Pa. 76, 176 A. 727.

Thus, under all of the definitions quoted above, funded debt means bonded indebtedness generally, and the opening sentence, standing alone, prohibits the State from having outstanding and unpaid bonds totaling more than $60,000,000 at any time.

However, the limitation prescribed in the first sentence is not inflexible. The second sentence empowers the State to issue bonds in excess of such limit of $60,000,000, when authorized by a two-thirds vote of the members of each house of the State legislature, “provided such excess debt, at the time of authorization, would not cause the total of state indebtedness to exceed” fifteen percent of the assessed values.

There may be some question as to the meaning of the proviso in the second sentence. The significance of the proviso may be understood if reference is had to a rather common practice of the Territorial legislature. The organic act placed a limitation on the amount of the outstanding Territorial debt, but did not limit the amounts of the loans that the legislature might authorize. This situation permitted the practice of stacking excess authorizations. By that, we mean that it led the Territorial legislature to enact legislation containing authorizations for the issuance of bonds in excess of the Territorial debt limit, with the result that the authorized bonds beyond the debt limit were kept waiting in line, unissued until either the debt limit was liberalized by a subsequent Congressional act or a margin for the issuance of additional bonds was created by a reduction in the amount of the outstanding bonds. We think that the proviso was intended to prevent such stacking.

As we construe the proviso, the validity of an act of the State legislature, passed by a two-thirds vote of the members of each house and containing an authorization to issue bonds which will be included in the State debt upon issuance, is determined as follows: First, ascertain the amount of the State debt limit at the time of the enactment of such act; second, ascertain the amount of the State debt on the same date; third, ascertain the amount, as of the same date, of the bonds that are authorized to be issued under the acts then in force and which will be included in the State debt upon issuance; the act is valid if the amount of the bonds that it authorizes does not exceed the difference between the first item and the total of the second and the third items. Otherwise, it is invalid. Under the view held by three members of this court, the third item includes only the amount of the unissued bonds authorized by the State legislature and which, upon issuance; will be included in the State debt; under our view, the third item includes the amount of the unissued bonds authorized by the State legislature and also includes the amount of the unissued bonds authorized by the Territorial legislature and which the State may issue under article XVI, section 4, as we shall explain later in this opinion.

The reason for the inclusion in the constitution of a provision prescribing both a fixed dollar limit and a percentage limit on the total amount of the State debt appears in the following statement of the Committee on Taxation and Finance of the Constitutional Convention: “Your Committee has considered the various methods used in establishing debt limits and is of the firm opinion (1) there should be a fixed dollar amount which will provide for a definite limit to apply at the time that the Constitution goes into effect, and (2) that flexibility should be provided for by permitting this limit to be increased by an extraordinary vote of the legislature * * * as economic conditions change.” Constitutional Convention of Hawaii, Standing Committee Report Wo. 51.

Thus, the language of article VI, section 3, paragraph 2, taken in its natural sense, prohibits the State from having outstanding bonds and authorizations to issue bonds which add up, at any time, to more than fifteen percent of the assessed values.

Our next problem is to determine the types of bonds which are required to be counted as parts of the State debt in the computation to determine whether the total amount of the outstanding and unpaid State debt is within the State debt limit.

There is no question that the convention contemplated that all general obligation bonds would constitute a part of the State debt. The Committee on Taxation and Finance stated that it was with general obligation bonds “that the section on debt limits is primarily concerned.” Constitutional Convention of Hawaii, Standing Committee Report No. 51.

At the time of Hawaii’s admission into the Union (hereafter, Hawaii’s admission into the Union will be referred to simply as “admission”), the Territory had $116,997,000 of general obligation bonds outstanding and unpaid. That figure was $56,997,000 in excess of the State debt limit of $60,000,000, which the convention intended to be applicable at the time of admission. However, article XVI, section 3, provided:

“The debts and liabilities of the Territory shall be assumed and paid by the State, * *

That provision did not place any limitation on the amount of the debts and liabilities that the State was required to assume and pay. We think that the provision was self-executing, and operated to turn all of the Territorial general obligation bonds, which were outstanding and unpaid at the time of admission, into State obligations and constituted them a part of the State debt, without any formal action on the part of the State. Some of the bonds, which thus became State obligations, were paid subsequent to admission, so that at the time of the enactment of Acts 22 and 23, the outstanding and unpaid balance of such bonds was $115,262,000, the figure set forth in paragraph III-B of the submission.

Defendant appears to be in accord with our interpretation of the meaning and effect of article XVI, section 3, for it is stated in the submission: “Defendant admits that the general obligation bonds set out in paragraph III-B should be counted toward the funded debt of the State.” We construe the admission to mean that such bonds should be counted as constituting a part of the State debt.

The Committee of the Whole of the Constitutional Convention considered that article XVI, section 3, was surplusage. It stated in Report No. 26: “The Committee was of the opinion that this section was surplusage, in view of the broader provisions in Committee Proposal No. 23, but felt that since the [United States] Senate had expressly required such a provision in H.R. 49 [Hawaii statehood bill in Congress], we should literally comply with such requirement, particularly since it relates largely to bonds.”

The broader provision of Committee Proposal No. 23, to which the committee undoubtedly had reference, was the provision that was included in article XVI, section 2, paragraph 2, reading as follows:

“Except as otherwise provided by this constitution, all existing * * * contracts, claims, demands, * * * and rights shall continue unaffected notwithstanding the taking effect of this constitution, except that the State shall be the legal successor to the Territory in respect thereof, * * *.”

Article XVI, section 3, might have appeared to be surplusage at the time of the convention, when the amount of the outstanding Territorial general obligation bonds was well beloAV the initial State debt limit of $60,000,000 prescribed in the first sentence of article VI, section 3, paragraph 2, for such situation would have been fully covered by article XVI, section 2, paragraph 2. It certainly was not surplusage at the time of admission when the amount of the outstanding Territorial general obligation bonds was $116,997,000. In such a situation, an argument might have been made that article XVI, section 3, was subject to article VI, section 3, paragraph 2. Thus, if reliance were had solely on article XVI, section 2, paragraph 2, it might have been argued that the phrase, “except as otherwise provided by this constitution,” had the effect of preventing $56,997,000 of the bonds over such limit of $60,000,000 from becoming State obligations without formal action on the part of the State.

Two members of this court are strongly of the conviction that under article VI, section 3, paragraph 2, the State debt consists only of general obligation bonds, that the highway revenue bonds and the aviation revenue bonds were not general obligations of the Territory, and that, consequently, such bonds did not become a part of the State debt. That brings up for our consideration the status of the highway revenue bonds and the aviation revenue bonds in the pattern of article VI, section 3, paragraph 2. We shall first consider the highway revenue bonds.

The highway revenue bonds are bonds of a unique type which did not exist at the time of the convention. Their issuance was authorized by S.L.H. 1955, c. 249, s. 1, compiled in R.L.H. 1955, § 137-80, and P.L. 716, Eighty-fourth Congress, Second Session. P.L. 716 became law on July 14, 1956. So, these bonds did not see daylight until six years after the convention. They were issued by the Territory under the general control and supervision of the superintendent of public works “for the design, construction, reconstruction, repair and maintenance of, and for engineering and acquisition of rights of way for, highways in the Territory on which federal aid moneys are expendable or have been expended.” They were not general obligations of the Territory, and are payable only from the proceeds of highway vehicle fuel taxes. No holder of such bonds has the right to compel any exercise of the taxing power of the Territory for their payment, except with respect to highway vehicle fuel taxes which secure their payment under the following provision of R.L.H. 1955, § 137-82: “To the extent required by any resolution of issuance, the proceeds of such taxes remaining in the territorial highway fund after the payments required by paragraph (a) of section 129-12 are hereby irrevocably pledged to the payment of any highway revenue bonds issued and of the interest thereon. This pledge shall take effect upon the first date of issuance of any such bonds and, so long as any such bonds are outstanding, shall continue to apply to the Territorial highway fund or such other fund as may be constituted for the deposit of highway vehicle fuel taxes under the control of the superintendent of public works. The legislature hereby agrees to continue to impose such taxes on highway vehicle fuels in amounts at least sufficient to provide, as the resolution of issuance may require, for the payment of the principal of all highway revenue bonds and the interest thereon, as such principal and interest become due.” In approving the issuance of these bonds, Congress declared in P.L. 716 that they “shall not constitute the incurrence of an indebtedness within the meaning of the Hawaiian Organic Act.”

A study of the proceedings of the convention, the committee reports, and the language of the various paragraphs of article VI, section 3, indicates that the convention considered the following types of indebtedness:

1. General obligation bonds “which are paid for from general revenues and the proceeds of which are used to develop the capital improvements or activities considered purely governmental”;

2. Instruments of indebtedness to meet appropriations for any fiscal period in anticipation of the collection of revenues for such period to meet casual deficits or failures of revenue, which shall be payable within one year;

3. Bonds and other instruments of indebtedness to suppress insurrection, to repel invasion, to defend the State in war, or to meet emergencies caused by disaster or act of God;

4. Revenue bonds of a public enterprise of the State or political subdivision, or of a public corporation, secured by the revenues of such enterprise or public corporation; and

5. Improvement district bonds secured by the properties benefited or improved or the assessments thereon.

With reference to the types of indebtedness mentioned in items 2 and 3, article VI, section 3, paragraph 3, provides:

“Instruments of indebtedness to meet appropriations for any fiscal period in anticipation of the collection of revenues for such period or to meet casual deficits or failures of revenue, which shall be payable within one year, and bonds or other instruments of indebtedness to suppress insurrection, to repel invasion, to defend the State in war or to meet emergencies caused by disaster or act of God, may be issued by the State under legislative authorization without regard to any debt limit.”

The types of indebtedness mentioned in items 4 and 5 are excluded from being counted as parts of the State debt by article VI, section 3, paragraph 7, which reads:

“The provisions of this section shall not be applicable to indebtedness incurred under revenue bond statutes by a public enterprise of the State or political subdivision, or by a public corporation, when the only security for such indebtedness is the revenues of such enterprise or public corporation, or to indebtedness incurred under special improvement statutes when the only security for such indebtedness is the properties benefited or improved or the assessments thereon.” There is no provision in the constitution which specifi-

cally mentions general obligation bonds. But article VI, section 3, paragraph 6, provides, in part:

“Interest and principal payments shall be a first charge on the general revenues of the State or political subdivision, as the case may be.”

The proponents of the proposition that the State debt consists only of general obligation bonds base their stand on this provision. They reach their conclusion, as we understand it, by the following process of reasoning: that only the bonds that constitute a first charge on the general revenues of the State are included in the meaning of the term “funded debt” as used in article VI, section 3, paragraph 2; that general obligation bonds are the only type of bonds that constitute a charge on the general revenues of the State; that, consequently, the term “funded debt” means general obligation bonds only.

We see these difficulties in such argument: first, it ignores the meaning of the term “funded debt” in its natural sense; second, it renders article VI, section 3, paragraph 7, meaningless; and, third, it misapplies article VI, section 3, paragraph 6.

If the convention intended that only general obligation bonds be included in the State debt, and that general obligation bonds issued for certain purposes be excluded from the State debt, it could easily have expressed such intention unequivocally, as Congress did in connection with the act approving the issuance of general obligation bonds to make and purchase mortgages on homes and farms of veterans in Hawaii under S.L.H. 1953, c. 211, which we shall hereafter refer to as “veterans’ mortgage bonds.” In P.L. 85-691, Eighty-fifth Congress, Second Session, Congress provided: “That in applying the Territory’s debt limitation, the computation of the amount to which the total indebtedness of the Territory may be extended at any time shall include all general obligation bonds, but shall not include the general obligation bonds to be issued pursuant to this Act.”

Instead, the convention used the generic term “funded debt” to denote the types of indebtedness that comprise the State debt. We have already noted that, in its natural sense, the term means bonded indebtedness generally. We must presume that the convention used such general term with a purpose. A constitution is a document which is intended to last a long time. So, it must be tensile and must have “a little play in its joints.” Holmes, J., in Bain Peanut Co. v. Pinson, 282 U.S. 499, 501. Nowhere is Mr. Justice Cardozo’s statement that “There is an accuracy that defeats itself by the overemphasis of details” more cogently applicable than in a constitution. Cardozo, Law and Literature, p. 7. The Committee on Taxation and Finance stated that it was with general obligation bonds that “the section on debt limits is primarily concerned.” (Emphasis supplied.) Such statement indicates that the convention did not consider that the State debt was comprised exclusively of general obligation bonds.

Also, if the convention intended that only general obligation bonds be included in the State debt, article VI, section 3, paragraph 7, would not have been necessary. The bonds mentioned in the provision do not constitute a charge on the general revenues of the State and are definitely not general obligation bonds. A provision to ex-elude bonds that are not general obligation bonds from the State debt has no meaning at all if the State debt is comprised of general obligation bonds only.

Article VI, section 3, paragraph 6, in its entirety, reads as follows:

“All bonds or other instruments of indebtedness for a term exceeding one year shall be in serial form maturing in substantially equal annual installments, the first installment to mature not later than five years from the date of the issue of such series, and the last installment not later than thirty-five years from the date of such issue. Interest and principal payments shall be a first charge on the general revenues of the State or political subdivision, as the case may be.”

This provision is prospective in its operation, and we think that it is applicable only to the bonds issued by the State under the authorizations of the State legislature, and has no application to the bonds inherited by the State from the Territory. We have no evidence as to whether the bonds inherited by the State from the Territory conformed to the requirement stated in the first sentence of the provision. It certainly cannot be said that such bonds, or some of them, which might not be in conformity with such requirement, did not become a part of the State debt by reason of such non-compliance.

We may reasonably assume that the convention did not give any consideration to highway revenue bonds. The records of the convention do not show that there was any discussion on the subject.

So, here we have a situation which the convention did not have in mind and for which it did not make any specific provision. In such a situation, the following words of Mr. Justice Stone, in United States v. Classic, 313 U.S. 299, 316, provide a beacon: “But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting np an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, these fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. * * * If we remember that fit is a Constitution we are expounding,’ we cannot rightly prefer, of possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.”

We see no justification for excluding the highway revenue bonds from the State debt. The literal meaning of the term “funded debt” includes such bonds. The constitutional purpose of article VI, section 3, paragraph 2, enjoins us to include such bonds in the State debt.

In connection with the State debt limit, the convention was principally concerned with the maintenance of the credit of the State and the ability of the State to market its bonds at reasonable rates of interest. It was of the firm view that a debt limit in excess of fifteen percent of the assessed values would impair the credit of the State and the marketability of its bonds at reasonable rates of interest. It excluded from the State debt the types of bonds which were self-liquidating and did not have any impact on the credit of the State.

The highway revenue bonds, like general obligation bonds, were issued to finance an activity which is purely governmental. They depend for their payment on the exercise of the taxing power of the State.

On June 30, 1950, when the convention was in session, there were outstanding and unpaid general obligation bonds issued for highway purposes under S.L.H. 1947, c. 73, in the amount of $3,000,000, and there was also an outstanding authorization for the issuance of such bonds under the same act in the amount of $2,850,000. Although such bonds were general obligation bonds, they were payable from the Territorial highway fund, a special fund created under R.L.H. 1945, § 5260, into which the taxes collected under the Hawaiian Fuel Tax Act, R.L.H. 1945, c. 100, were deposited. The convention treated such bonds and authorizations like other outstanding general obligation bonds and authorizations to issue general obligation bonds, and did not provide for their exclusion from the State debt merely because they were paid from a special fund.

Under S.L.H. 1947, c. 73, as amended by S.L.H. 1951, c. Ill, general obligation bonds in the amount of $8,100,000 were issued for highway purposes. The outstanding Territorial general obligation bonds of $116,997,000 that the State inherited upon admission included the outstanding and unpaid balance of such bonds issued for highway purposes. Before admission, the general obligation bonds issued for highway purposes were paid from the Territorial highway fund; after admission they are being paid from the State highway fund.

The impact of the highway revenue bonds and the general obligation bonds issued for highway purposes upon the credit of the State appears to be similar. Both require the exercise of the taxing power of the State for their payment, both are paid from the State highway fund, and both constitute a drain on the tax revenues of the State.

The highway revenue bonds were issued to finance an accelerated highway improvement program urgently needed to meet the Territory’s rapidly expanding traffic requirements and to place the Territory in a better position to match the increased allocations of Federal funds under the Federal Aid Highway Act of 1954 and other anticipated Federal legislation. Congress made the issuance of these bonds possible, without regard to the Territorial debt limit, by declaring in P.L. 716, Eighty-fourth Congress, Second Session, that their issuance did not constitute the incurrence of an indebtedness within the meaning of the organic act. Nothing in the history of P.L. 716 shows that these bonds were excepted from the Territorial debt limit because they were intrinsically of such a nature as to have no effect on the credit of the State. It appears that Congress excepted them because the needs of the Territory were urgent and it had the plenary power to except them.

There is no provision in the constitution which excludes from the State debt certain bonds inherited from the Territory merely because they did not constitute a part of the Territorial debt. The constitution determines which bonds are to be included in the State debt. For the purpose of such determination, the status of the bonds under the organic act or other acts of Congress is immaterial.

Defendant contends that the highway revenue bonds are excluded from the State debt under article VI, section 3, paragraph 7.

The argument is that the construction and maintenance of highways constitute a public enterprise of the State and that the proceeds of highway vehicle fuel taxes deposited in the State highway fund, which secure such bonds, are revenues of such enterprise.

We see no necessity for stating our view as to whether the construction and maintenance of highways may be considered a public enterprise of the State, for it is too far-fetched to characterize the revenues derived from the exercise of the taxing power of the State and allocated to the operation of a governmental activity as revenues of an enterprise.

The language of article VI, section 3, paragraph 7, as well as the reports of the Committee on Taxation and Finance and the Committee of the Whole, clearly indicate the types of bonds intended to be covered by the provision. According to the Committee on Taxation and ^Finance, the provision covers “Revenue bonds issued by and against particular activities that are expected to pay their own cost of operation — e.g., water bonds, bonds for the development of harbors, airports, etc.” According to the Committee of the Whole, the provision covers “bonds such as those which might be issued by a local redevelopment agency under the Urban Redevelopment Act or similar legislation.” The bonds referred to by the Committee on Taxation and Finance and the Committee of the Whole are bonds that may be issued either under R.L.H. 1955, c. 137, pt. Ill, or R.L.H. 1955, c. 140, and depend for their payment solely upon the revenue producing potential of the undertakings for which they are issued, and are not like the highway revenue bonds, which depend for their payment on the exercise of the taxing power of the State.

Aviation revenue bonds were issued by the Territory under the general control and supervision of the Hawaii Aeronautics Commission “for the construction, operation and maintenance of airports and air navigation facilities, including acquisition of real property and interests therein,” and were payable from the proceeds of aviation fuel taxes and revenues of the commission, including rents, fees and other charges. Like the highway revenue bonds, they were not general obligations of the Territory. Also, like the highway revenue bonds, they are dependent for their payment upon the exercise of the taxing power of the State in imposing and collecting aviation fuel taxes. They differ from the highway revenue bonds in that they are additionally secured by the revenues of the commission, including rents, fees and other charges. This feature makes these bonds look somewhat like the revenue bonds mentioned in article VI, section 3, paragraph 7, but is insufficient to take them out of the State debt, for, in order to come under that provision, the revenues of the enterprise must be the only security for the bonds.

One final statement may be made about our position with reference to the highway revenue bonds and the aviation revenue bonds. Professor Powell makes the suggestion that “it is at least arguable that in construing a constitution, one is not restricted to what the framers thereof thought they were saying, nor even to what they would then have said, if the present problem had been suggested to them for decision, but rather that one should ask what would men of the present, having a caliber and interest in public weal comparable to these framers, now say upon the problem now faced.” Powell, Construction of Written Instruments, 14 Indiana Law Journal, 199,207.

Professor Powell acknowledges that his statement is rather broad and goes beyond the current status of the law with respect to constitutional interpretation. The point that we wish to make is that even if such statement accurately states the law at this time, we will arrive at the same conclusion.

As late as August 1958, just one year before admission, after it had decided to approve the issuance of the highway revenue bonds and the aviation revenue bonds as exceptions to the debt limit prescribed in the organic act by using the formula that the issuance of such bonds did not constitute the incurrence of an indebtedness within the meaning of the organic act, Congress refused to increase the debt limit prescribed in the organic act from ten percent to fifteen percent of the assessed values, but took care of the immediate fiscal needs of the Territory in P.L. 85-691, Eighty-fifth Congress, Second Session, by using another formula which we previously mentioned, namely, “That in applying the Territory’s debt limitation, the computation of the amount to which the total indebtedness of the Territory may be extended at any time shall include all general obligation bonds, but shall not include the general obligation bonds to be issued pursuant to this Act.” In refusing to increase the debt limit prescribed in the organic act, Congress followed the recommendation of the Interior Department. The recommendation of the Interior Department was set forth in the communication to the Chairman, Committee on Interior and Insular Affairs, House of Representatives, pertinent portions of which were as follows:

“We are opposed to the enactment of H.R. 9499. However, we recommend that H.R. 11954 be enacted, if amended in the manner suggested herein. * * * ÍÍ* * *

“The purpose of H.R. 9499 is to increase the debt limitation for bonds issued by the Territorial government from 10 to 15 percent of the assessed value of property. * * *

“We consider it very necessary that action be taken to permit additional bonding by the Territory at this time. However, we do not consider it advisable to increase the ceiling from the present level of 10 percent. Instead, we favor the alternative approach toward making additional bonding capacity available to the Territory, as set forth in H.R. 11954 and in the attached substitute.

“With respect to the proposed increase in ceiling, from 10 to 15 percent of assessed valuation, a Territorial advisory committee on government financing has just completed a study of its probable effect upon the credit of the Territorial government and the marketability of its bonds. On the basis of this study, the committee has reported to Governor Quinn that 10 percent is the practical, as well as the legal, limit on issuance of bonds, because of market attitudes among bond dealers and investors that would be encountered if that limit were departed from. That committee has further advised that the mere raising of the statutory limit would be disadvantageous to the market standing of Territorial issues.

“H.R. 11954 provides, as an alternative, that there be excluded from the computation of issues governed by the 10-percent maximum, the veterans’ home mortgage bonds issued pursuant to act 211 of the 1953 Territorial legislature * * *. Of the $20 million in bonds authorized by that act, $16,900,000 is outstanding. Although this bond issue is entirely self-supporting, it is charged against the Territorial debt limit. We believe that exclusion of these bonds from the debt limit would in no way impair marketability of Territorial bonds. At the same time, that action would permit additional Territorial borrowing in the amount of over $16 million. Such a change would take care of the Territory’s immediate needs.” U.8. Code Congressional and Administrative News, 85th Congress, Second Session, 1958, pp. 3663-3664.

If the argument of the proponents of the proposition that only general obligation bonds should be included in the State debt were followed, the State could have issued, at the time of admission, additional general obligation bonds of $55,862,671, the difference between the State debt limit of $172,859,671 and the outstanding general obligation bonds of $116,997,000. In such event, the State could have had at the time of admission total bonded indebtedness of $236,084,671, as follows:

Outstanding general obligation bonds........$116,997,000

Outstanding highway revenue bonds.......... 49,225,000

Outstanding aviation revenue bonds............ 14,000,000

Additional general obligation bonds issuable under authorizations of State legislature.................................... 55,862,671

Total....................................................$236,081,671

Such sum of $236,081,671 would have been 20.5 percent of the assessed values of $1,152,397,810. We do not think that such result accords with the intention of the convention, nor does it accord with the intention of Congress expressed exactly a year before admission.

We hold that both the highway revenue bonds and the aviation revenue bonds should be included in the State debt.

The outstanding Territorial general obligation bonds, the highway revenue bonds and the aviation revenue bonds added up to $178,187,000 at the time of the enactment of Acts 22 and 23. Such total was $5,627,329 in excess of the applicable State debt limit of $172,859,671. Consequently, Acts 22 and 23 are invalid, and none of the bonds mentioned in those acts may be issued under the authorizations contained in those acts.

However, we think that most of the projects for which bonds were authorized by Acts 22 and 23 may be undertaken by the issuance of bonds under the authorizations contained in the following acts of the Territorial legislature which make up the Territorial general obligation bond authorizations of $58,191,753:

S.L.H. 1917 Act 205............................$ 1

S.L.H. 1919 Act 101............................ 61,900

S.L.H. (Sp.) 1919 Act 55.............................. 157,000

S.L.H. 1953 Act 211............................ 110,000

S.L.H. 1953 Act 280............................ 1,517,976

S.L.H. 1955 Act 273............................ 9,611,199

S.L.H. 1957 Act 150............................ 20,206,152

S.L.H. 1959 Act 221............................ 26,821,525

$58,191,753

We think that the mentioned acts were continued in force after admission by the plain words of article XVI, section 4, which provided:

“All acts of the legislature of the Territory authorizing the issuance of bonds by the Territory or its political subdivisions are approved, subject, however, to amendment or repeal by the legislature, and bonds may be issued by the State and its political subdivisions pursuant to said acts. Whenever in said acts the approval of the President or of the Congress is required, the approval of the governor shall suffice.”

Article XVI, section 4, has an importance which is not readily apparent on casual reading. The literal meaning of the provision is clear. The first sentence does these three things: (1) it continues in force all acts of the Territorial legislature authorizing the issuance of bonds by the Territory or its political subdivisions; (2) it permits the State legislature to amend or repeal the acts so continued in force; and (3) it empowers the State and its political subdivisions to issue bonds “pursuant to said acts.” The second sentence provides a substitute procedure to satisfy the provisions in the Territorial acts requiring Presidential or Congressional approval as a prerequisite to the issuance of bonds.

In other words, what article XVI, section 4, does is to continue in force the acts of the Territorial legislature authorizing the issuance of bonds as though admission had not taken place, with these two necessary changes: first, the State is substituted for the Territory, and, second, the approval of the governor is substituted for Presidential or Congressional approval. It places the State in the same position as the Territory with respect to such acts, and empowers the State to do exactly the same things to, and exactly the same thing under, such acts as the Territory could have done, no more, no less.

Thus, before admission, the Territorial legislature could have amended or repealed such acts. So, after admission, under article XVI, section 4, the State may amend or repeal such acts. Also, before admission, the Territory could have issued the bonds authorized in such acts, subject to the special limitations, if any, contained in such acts and to the limitations contained in the organic act and other Congressional acts. So, after admission, the State may issue the bonds authorized by such acts, subject to the same limitations that applied to the Territory.

Most of the mentioned acts contained some special limitations regarding the issuance of the authorized bonds. All of such acts contained the general limitation that the authorized bonds be issued “as provided by law.” The quoted phrase required that the authorized bonds be issued subject to the Territorial debt limit prescribed in the organic act, as amended by subsequent Congressional acts.

At the time of admission, the applicable Territorial debt limit was the limit provided in P.L. 85-691, Eighty-fifth Congress, Second Session, approved August 20, 1958. The limit was ten percent of the assessed values, exclusive of veterans’ mortgage bonds.

Also, at the time of admission, the assessed values were $1,152,397,810, ten percent of which was $115,239,781; the amount of the outstanding Territorial general obligation bonds was $116,997,000, including $19,362,230 of veterans’ mortgage bonds; and the amount of the Territorial general obligation bond authorizations was $58,494,753, including $110,000 of authorization to issue veterans’ mortgage bonds.

Inasmuch as P.L. 85-691 excluded veterans’ mortgage bonds from the Territorial debt, out of the outstanding Territorial general obligation bonds of $116,997,000 mentioned in the preceding paragraph, only $97,634,770, the difference between $116,997,000 and $19,362,230, constituted the Territorial debt. That would have permitted the Territory, immediately before admission, to issue, under the mentioned acts, other than S.L.H. 1953, c. 211, additional general obligation bonds of $17,605,011, the difference between the Territorial debt limit of $115,239,781 and $97,634,770. Also, in addition to such bonds of $17,605,011, the Territory could have issued $110,000 of veterans’ mortgage bonds under S.L.H. 1953, c. 211.

If effect were given to the literal meaning of article XVI, section 4, inasmuch as it placed the State in the same position as the Territory with respect to the Territorial general obligation bond authorizations, the State, immediately after admission, like the Territory immediately before admission, could have issued $17,605,011 of general obligation bonds under the authorizations contained in the mentioned acts, other than S.L.H. 1953, c. 211, and also $110,000 of veterans’ mortgage bonds under S.L.H. 1953, c. 211.

We do not think that the authority of the State to issue such bonds lapsed by reason of its failure to issue the authorized bonds immediately upon admission. We think that the State may still issue the bonds that the Territory could have issued immediately before admission. The bonds so issued will be part of the State debt.

Three members of this court are of the opinion that the State cannot issue any bonds under the Territorial general obligation bond authorizations which were outstanding at the time of admission. Our understanding of their position is that article XVI, section 4, is subject to article VI, section 3, paragraph 2, although it is not expressly so stated in the constitution; that under article VI, section 3, paragraph 2, the limit of the funded debt of the State outstanding and unpaid at any time is fixed at $60,000,000; that such limit may be exceeded by a two-thirds vote of the members of each house of the State legislature; that the outstanding and unpaid funded debt that the State inherited from the Territory at the time of admission was §116,997,000, if only general obligation bonds were counted, and was §180,222,000, if the highway revenue bonds and the aviation revenue bonds were counted in addition to general obligation bonds; that article XVI, section 4, continued the Territorial acts in force, but, because of the limitation prescribed in article VI, section 3, paragraph 2, such acts were dormant and the State could not issue any bonds thereunder either at the time of admission or at the time of the enactment of Acts 22 and 23.

Article XVI, section 4, was included in the constitution as a result of the proposal made in the Committee of the Whole in the closing days of the convention after the committee had considered the proposals which were incorporated in the constitution as article XVI, section 2, paragraph 1, and article XVI, section 3. We have already discussed article XVI, section 3, which provided for the assumption and payment by the State of the debts and liabilities of the Territory. Article XVI, section 2, paragraph 1, reads as follows:

“All laws in force at the time this constitution takes effect and not inconsistent therewith, * * * shall be the laws of the State and remain in force, mutatis mutandis, until they expire by their own limitation, or are altered or repealed by the legislature.”

The committee thought that the matter stated in article XVI, section 4, was covered by article XVI, section 2, paragraph 1. However, it recommended the adoption of article XVI, section 4, because it deemed it wise to have a section dealing expressly with bonds in view of “the rigid scrutiny given to our laws by mainland bond attorneys whenever a bond issue is proposed.”

Thus, article XVI, section 4, is a special provision to cover a specific matter included in the general provision of article XVI, section 2, paragraph 1. It is a settled rule of construction “that where there is, in an act or Constitution, a specific provision relating to a particular subject, such provision will govern in respect to that subject as against general provisions in the act or Constitution, although the latter standing alone would be broad enough to include the subject to which the more particular provision relates.” City of Tulsa v. Southwestern Bell Telephone Co., 75 F. 2d 343. Under such rule, article XVI, section 4, superseded article XVI, section 2, paragraph 1, in respect to the Territorial acts authorizing the issuance of bonds.

If the convention had not included article XVI, section 4, in the constitution, article XVI, section 2, paragraph 1, would have continued the mentioned acts of the Territorial legislature authorizing the issuance of bonds, with necessary changes, but only to the extent that such acts were not inconsistent with the constitution.

In the situation that existed at the time of admission, when the amount of the outstanding Territorial general obligation bonds exceeded the initial debt limit of $60,000,000 prescribed in article VI, section 3, paragraph 2, and the total of such bonds and the other bonds, which should be included in the State debt according to our view, exceeded fifteen percent of the assessed values, the qualifying phrase “not inconsistent therewith” in article XVI, section 2, paragraph 1, would have raised the question whether any Territorial act causing the issuance of bonds not only in excess of such limit of $60,000,000 but also in excess of fifteen percent of the assessed values would have been consistent with the constitution.

Article XVI, section 4, does not contain any qualifying phrase which is similar to the phrase contained in article XVI, section 2, paragraph 1. So, unless we read such phrase into it, article XVI, section 4, continues in force all of the Territorial acts containing authorizations to issue bonds without regard to anything that is stated in article VI, section 3, paragraph 2.

We do not think that there is justification for reading such qualifying phrase into article XVI, section 4. We must presume that the convention knew what it was doing and that it omitted such qualifying clause deliberately and for good reason. As Chief Justice Marshall said, the convention “must be understood to have employed words in their natural sense, and to have intended what they have said.”

The reading of such qualifying phrase in article XVI, section 4, throws a smog of uncertainty around a provision which, without such supplementation, is clear as crystal. It was precisely to maintain the clarity so necessary for the marketing of the bonds authorized by the acts of the Territorial legislature and to eliminate all beclouding uncertainty that the convention adopted article XVI, section 4, as a “separate section dealing expressly with such territorial bond laws.” We repeat the words of Mr. Justice Story as being particularly pertinent here: “Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.”

We do not think that article VI, section 3, paragraph 2, controls article XVI, section 4, assuming that there is a conflict between the two provisions. Rather, we think that it is the other way around. If there is any conflict, we think that article XVI, section 4, supersedes article VI, section 3, paragraph 2.

However, we do not think that there is a conflict between the two provisions. They deal with two different things. Article VI, section 3, paragraph 2, places a limitation on the borrowings that the State may do entirely on its own under the authorizations of its legislature. It has nothing to do with the obligations which the State must willy-nilly accept under the constitution, nor does it have anything to do with the authorizations to issue bonds that the constitution gives to the State. Article XVI, section 4, says that the State may issue the bonds authorized by the acts of the Territorial legislature “pursuant to said acts.” It does not say that the issuance shall be pursuant to article VI, section 3, paragraph 2. Thus, article XVI, section 4, in effect, furnishes to the State a constitutional authorization to issue bonds, which is on a higher plane than even an authorization by a two-thirds vote of the members of each house of the State legislature.

To give effect to article XVI, section 4, according to its literal meaning will be in accord with the purpose of the provision and with Mr. Justice Stone’s injunction that “If we remember ‘it is a Constitution we are expounding,’ we cannot rightly prefer, of possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.”

Article XVI, section 4, is a transitional provision. The transitional provisions in the constitution were designed to make the transition of Hawaii from the status of a territory to that of a state as smooth as possible. We shall explain how article XVI, section 4, would have effectuated such design and purpose.

As previously stated, the Territory could have issued $17,605,011 of general obligation bonds, other than veterans’ mortgage bonds, and $110,000 of veterans’ mortgage bonds, immediately before admission. The Territory had sold $20,000,000 of general obligation bonds and $12,500,000 of highway revenue bonds within three months of admission. Such, sales had brought the total Territorial debt that the State was required to assume under article XVI, section 3, at the time of admission, to exceed fifteen percent of the assessed values by $7,362,329, as follows:

Outstanding Territorial general obligation bonds............................$116,997,000

Outstanding highway revenue bonds.......... 49,225,000

Outstanding aviation revenue bonds.......... 14,000,000

Total of outstanding bonds..........................$180,222,000

Fifteen percent of assessed values.............. 172,859,671

Excess over fifteen percent of assessed values........................................$ 7,362,329

Among the acts of the Territorial legislature authorizing the issuance of bonds contained in the Territorial general obligation bonds of $58,474,753, was S.L.H. 1957, c. 150.

The authorizations under S.L.H. 1957, c. 150, which had not been allocated to specific public improvements at the time of admission amounted to $20,206,152. The act provided that the “governor upon recommendation of the director of territorial planning shall determine when the authorized projects shall be initiated, taking into consideration the factors of public need, current bond market conditions, general financial condition of the Territory, and general economic conditions * *

We do not know why the Territory had not issued all of the bonds that it could have issued before admission. The reason might have been that the authorized projects were not urgently needed, or it might have been that, although the projects were needed, the bond market conditions or the economic conditions were unfavorable.

If the Territory had not issued the bonds for the reason that the authorized projects were not urgently needed, article XVI, section 4, does not require the State to undertake such projects. Under the provision, the State legislature may repeal the Territorial acts authorizing the issuance of the bonds required to finance such projects.

On the other hand, if the Territory had not issued the bonds for the reason that the bond market conditions or the economic conditions were unfavorable, although the authorized projects were needed, our interpretation of article XYI, section 4, will permit the State to issue the bonds that the Territory could have issued when the bond market conditions and the economic conditions improved. Thus, under our interpretation of article XYI, section 4, admission will not cause the people of Hawaii to go without the necessary projects, which the Territory would have provided in due time if admission had not taken place.

The total bonded indebtedness of $180,222,000 that the State inherited from the Territory at the time of admission constituted 15.6 percent of the assessed values. The issuance of $17,715,011 ($17,605,011 plus $110,000) of additional bonds would have caused the State debt to be $197,937,011, or 17.2 percent of the assessed values.

Such a situation would have prohibited the State from authorizing the issuance of bonds during the transitional period while the outstanding and unpaid bonds that the State inherited from the Territory and the bonds that the State issued under Territorial authorizations worked themselves down to an amount below the State debt limit or the State debt limit worked itself up above the outstanding and unpaid balance of such bonds by increase in the assessed values.

However, we repeat, article XYI, section 4, does not obligate the State to issue the bonds authorized by the Territorial acts; it merely permits the State to issue such bonds, if it desires to do so and only if it desires to do so, and also only within the limitations prescribed in the Territorial debt prescribed in the organic act and other Congressional acts.

We think that our interpretation of article XVI, section 4, by thus giving the State the chance to issue such bonds and undertake the projects that the Territory could have undertaken, not only gives effect to the natural sense of the language of the provision but also effectuates the constitutional purpose of bringing about a smooth transition from the territorial form of government to that of a state.

If our interpretation of article XVI, section 4, represented the view of the majority of the members of this court with reference to that provision, then in view of the authority of the State legislature to amend the Territorial acts which were continued in force by that provision, it may conceivably be argued that Acts 22 and 23 are amendments of the mentioned acts of the Territorial legislature authorizing the issuance of bonds and are valid as such amendments. But three members of this court do not agree with our interpretation. Their position, as we previously noted, is that the State could not issue the bonds under the Territorial acts either at the time of admission or at the time of the enactment of Acts 22 and 23. In enacting Acts 22 and 23, the State legislature obviously proceeded on the same premise. It framed those acts as new authorizations under the second sentence of article VI, section 3, paragraph 2, and not as amendments of the Territorial acts under article XVI, section 4. Consequently, there is no necessity for further pursuing this inquiry.

Inasmuch as Mr. Justice Cassidy joins in our holding that the outstanding Territorial general obligation bonds, the highway revenue bonds and the aviation revenue bonds should be included in the State debt, although he does not agree with our view on the Territorial general obligation bond authorizations, judgment will be entered declaring:

1. That the authorization to issue $6,000,000 worth of bonds found in Act 22, First Special Session 1959, First State Legislature, and the authorization to issue $5,000,000 worth of bonds found in Act 23, First Special Session 1959, First State Legislature, are unconstitutional and of no effect;

G. Nils Tavares and Michiro Watanabe for plaintiff. Shiro Kashiwa, Attorney General, Harold Y. Shintaku, Deputy Attorney General (Henry H. Shigelcane and Garlos Ramelb, Deputy Attorneys General, with them on the briefs) and George Herrington of the firm of Orrick, Dahlquist, Herrington & Sutcliffe, for defendant.

2. That the approval granted the issuance of the bonds under Acts 22 and 23 by the governor is accordingly void and of no effect; and

3. That defendant cannot legally proceed to issue, sell, and deliver the $6,000,000 and $5,000,000 bond issues pursuant to Acts 22 and 23.